Federal Constitutional Childcare Interests and Superior Parental Rights in Illinois

Even without a majority rationale, the opinions in Troxel v. Granville, 530 U.S. 57 (2000), support the notion that there are federal constitutional “liberty interests of parents in the care, custody, and control of their children” which generally foreclose state – compelled nonparent childcare over parental objections. They also recognize there can be exceptions, including perhaps when parental wishes are accorded “at least some special weight;” when “harm or potential harm” to children may ensue; when there are already “substantial relationships” between children and nonparents; or when states legitimately seek to preserve “established familial or family-like bonds.” As well, the opinions recognize that definitions of parenthood can include, at times, those without biological or adoptive ties. In Illinois, as elsewhere, the Troxel interests of parents are protected by the “superior rights doctrine.” The doctrine appears in both statutes and case precedents as do its increasing exceptions. The doctrine is also increasingly unavailable to some biological and adoptive parents because new forms of parenthood are recognized, expanding those with superior rights under Troxel. Such new parentage forms can have different labels, like de facto parent; equitable parent; parentage by estoppel; and, psychological parent. The article describes current Illinois statutes and precedents on both superior rights exceptions and parentage definitions. It examines the facts of In re Marriage of Mancine, 2012 IL App (1st) 111138, a childcare dispute between an adoptive parent and a former stepparent after comparing current Illinois policies with the policies in other American states. The article concludes with recommendations for further exceptions and new parentage definitions. It finds incomplete the proposals of the Illinois Family Law Study Committee, a General Assembly appointee whose suggestions will very likely be significantly debated in 2013. In particular, the article focuses on preferred approaches taken in other states and changes to Illinois laws on voluntary parentage acknowledgments, family relations contracts and guardianships

Parentage Prenups and Midnups

In July 2012, the National Conference of Commissioners on Uniform State Laws recommended for enactment in all American states the Uniform Premarital and Marital Agreements Act. Unlike its predecessor, the Act treats “premarital agreements and marital agreements under the same set of principles and requirements.” Like its predecessor, it speaks largely to agreements on property, including money. Unlike its predecessor, it expressly recognizes there may be agreements on “custodial responsibility.” Custodial agreements are not “binding” on the courts under the Act because parents and prospective parents do not have the power to waive the rights of third parties (their current or future children) or to remove the duty of the courts to protect the best interests of minor children. The Act’s Comment suggests that while such agreements are not always enforceable, they can provide “guidance” to courts. The paper argues that “guidance” on “custodial responsibility” should flow from prenups and midnups even if there is no statute on such agreements and even if any statute is silent as to “custodial responsibility.” The Act implies there can be guidance within premarital and marital agreements on future child support for existing and future children. It also implies there can be guidance within such agreements to create, have created, or adopt children. States implementing the Act should expressly recognize that prenups and midnups can address child support and child creation as well as child custody. When might child custody, child support or child creation promises within prenups and midnups be suitable for prospective and current spouses and others? And when might prenups and midnups provide “guidance” to judges? This paper suggests that future and actual stepparents could employ such agreements. Without such agreements, stepparent standing to seek childcare orders is usually less available because of the superior parental rights of existing parents. The paper also suggests that childcare pacts in prenups and midnups can guide other current and future family members (like grandparents, aunts and uncles) who later seek to childcare. As to child support pacts, superior parental rights and public concerns about children’s interests pose fewer problems than childcare pacts. Childcare by a parent generally is not negatively impacted when additional child support is provided. Public policy does not allow money alone, however, to be the basis for childcare standing. As to child creation agreements, both superior parental rights and other federal constitutional interests (like paternity opportunity interests), as well as public concerns, are significantly implicated. Statutes and common law rulings already respect certain child creation pacts involving assisted human reproduction outside of prenups and midnups. The paper suggests prenups or midnups on child creation should also guide judicial decisions, sometimes beyond these statutes and rulings

State Lawmaking on Federal Constitutional Childcare Parents: More Principled Allocations of Powers and More Rational Distinctions

Unlike other federal constitutional rightsholders, a parent with the federal constitutional right to exercise “care, custody, and control” over a child is defined by state lawmakers. While federal constitutional childcare parents may be defined by state constitutional law precedents, they typically are not. The balance of General Assembly and judicial authority over childcare parentage definitions varies interstate. As well, the definitions of childcare parentage differ intrastate depending upon how parentage is established. At times, childcare parentage is defined in a single state by biological ties (real or imagined), contracts, or earlier histories of significant parental-like acts. When determining federal constitutional childcare parentage, state courts too frequently rule without considering key principles. More principled opinions are needed. Further, when applying rule statutes defining childcare parents, state courts too frequently rule without recognizing equality issues. These distinctions can involve wed and unwed couples; same sex and opposite sex couples; single individuals and coupled individuals; and those who do or do not contribute genetic material leading to birth. This paper reviews the deference on federal constitutional childcare parentage to state lawmakers; how this deference has not yielded many state constitutional law precedents; the varied state statutory and common law approaches to defining federal constitutional childcare parents; certain key principles which should guide state legislatures and courts in determining who within a state should define childcare parents; and, how equality demands sometimes require courts to invalidate statutory or common law definitions of childcare parentage

Federalizing Birth Certificate Procedures

A natural father is usually afforded under American law the unique "opportunity... to develop a relationship with his offspring" born to an unwed mother as a result of consensual sexual intercourse. This paternity opportunity interest often merits federal constitutional due process protection. Its enforcement, however, is often impaired by unfair state paternity designation procedures, especially in birth certificate settings. Inadequate procedures cause systematic losses of parental rights for "many responsible" natural fathers. Under Section 5 of the Fourteenth Amendment, Congress can act to enforce better male parental rights. It should now unify certain birth certificate practices for all children born in the United States to unwed mothers. In particular, Congress should improve the procedures for locating and educating natural fathers eligible for parental rights. It can do so by amending the federal Social Security Act provisions, added in 1996, on voluntary acknowledgments of paternity (or parentage)

Failed or Uneven Discourse of State Constitutionalism?: Governmental Structure and State Constitutions

ln his Michigan Law Review article, "The Failed Discourse of State Constitutionalism," Professor James A. Gardner examines the responses to Justice Brennan's invitation to state high courts "to seize control of the protection of constitutional rights by looking to state constitutions as potentially more generous guarantors of individual rights than the U.S. Constitution." He finds the responses in the "voluminous body of commentary" by "distinguished state jurists" and "prolific academics" to be "extraordinarily optimistic about the prospects for state constitutional law . . . not only to meet Justice Brennan's challenge, but to fulfill the promise of a genuinely federal system of government." But after examining "the status of state constitutional law as it is practiced today," he finds "a vast wasteland of confusing, conflicting and essentially unintelligible pronouncements." This wasteland is said to result from "the failure of state courts to develop a coherent discourse of state constitutional law." He does not find the wasteland surprising, as a coherent discourse is deemed impossible because state constitutíons do not reflect the fundamental values, and ultimately the character, of the people of the states that adopt them. He finds that "the notion of state constitutionalism as defining distinctive and coherent ways of life does not accurately describe state constitutions." The description fails because "Americans are now a people who are so alike from state to state, and whose identity is so much associated with national values and institutions, that the notion of significant local variations in character and identity is just too implausible to take seriously as the basis for a distinct constitutional discourse." The failure of a state's constitution and its interpretation to reflect its people's values and character, and the present actual lack of local values and character, do not trouble Professor Gardner. Such a reflection or local identity "could pose a serious threat to the nationwide stability and sense of community that national constitutionalism provides." ln many ways, Professor Gardner is happy to observe that Justice Brennan's invited discourse on state constitutionalism has failed. I leave to others, presumably excessively optimistic jurists and academics, the task of responding to Professor Gardner's vision of the real and ideal role of state constitutions and state high courts in guaranteeing individual rights. Herein, l will briefly explore the real and ideal role of state constitutions and state high courts in defining state governments. There, in my víew, state constitutionalism does more to fulfill signifícantly the promise of a genuinely federal system of government. There, states do, and should, acknowledge very different common identities. Such differences do not endanger nationhood. By focusing almost exclusively on individual rights, Professor Gardner has not seriously considered the discourse of state constitutionalism on the powers of government, on what factors explain any inadequate discourse in this area, and on what can be done to correct any troubling discourse. My observations on governmental structure in state constitutions are intended to broaden the discussion of state constitutionalism spurred by Professor Gardner's article

Greater Employment Equalities in the New South Through New Constitutional Guarantees

Most American state constitutions contain equal protection clauses. The words in these clauses often follow the words in the equal protection clause of the federal constitution. Not surprisingly perhaps, many state courts read their own clauses as providing no greater equalities than are afforded federally, following "in lockstep". But some American state constitutions have special equality provisions having no federal counterparts. Such clauses not only facilitate, but seemingly require, greater independent state constitutionalism. For example, in Illinois there are three special equality provisions beyond the general equal protection clause. They deal with employment, housing, local government and school districts. Of course, special provisions can extend, but never diminish, federal constitutional, statutory and regulatory equalities. In Illinois and elsewhere in the United States, constitutional equalities are promoted by provisions guaranteeing the equal protection of the laws and insuring freedom from discrimination. These two types of provisions typically are read as seeking comparable forms of equality and anticipating similar types of remedies. State Human Rights Commissions and their equivalents have been broadly delegated powers in many states regarding both equal protection and nondiscrimination. Nevertheless, there are sometimes reasons to treat differently equality and nondiscrimination provisions. Equality duties are often limited to governmental acts, as in the federal constitution, while nondiscrimination responsibilities are extended at times to private acts. As well, even where laws treat people and entities equally, discrimination may continue or arise. Antidiscrimination provisions can be read to impose upon government some affirmative duties to end discrimination not caused by government. This paper was first presented on January 16, 2009 at a symposium sponsored by the Charleston Law School and the Riley Institute at Furman that was entitled, "State Constitutional Reform in the New South." The paper explores the extent to which American states in the New South should promote greater constitutional equalities and nondiscrimination than are afforded federally. It begins by examining the benefits of special equality and nondiscrimination guarantees. It then examines American state experiences inside and outside the New South. Finally, it explores arenas where new explicit guarantees seem warranted, finding one special Illinois equality provision particularly inviting

Disciplinary Referrals Under New Federal Civil Rule 11

The 1983 amendments to Federal Civil Procedure Rule 11, concerning sanctions for frivolous litigation papers, prompted much controversy and satellite litigation. By the latter 1980s many called for further changes to the "stop and think" rule. Amendments took effect on December 1, 1993. The new rule reduces a party's incentives to pursue sanctions because fewer types of misconduct are sanctionable. Additionally, attorney's fees are available less often even when sanctions are warranted because more public interest remedies, like reprimands, fines, orders of continuing education, and disciplinary referrals, are favored. This Article will focus on bar disciplinary referrals under the new rule. While the 1993 rule expressly invites more disciplinary referrals, it provides little guidance on their procedural or substantive guidelines. The 1993 rule is not clear on which recipient agencies are contemplated for the referrals, or when and what forms of "vigilante" discipline would be appropriate as alternatives, or supplements, to these referrals. Further, many state disciplinary agencies are not well prepared to handle a flood of Rule 11 referrals. The Article will addresses these issues, and then offers suggestions on the relationship between disciplinary referrals and other available sanctions under Rule 11