The Non-Marital Presumption
Abstract The question of how legal parenthood should be determined has long been the subject of extensive scholarship. The emergence and expansion of assisted reproductive technology alongside changes in family structures have prompted scholars and policymakers to shift their focus regarding the law surrounding parentage determination. Rather than relying solely on biology, they now also consider the intent to become a parent as well as the parental function. We argue that, while intent, parental function, and biology are all valuable factors in determining parentage, each has its own limitations and deficiencies, placing certain family forms in a legally vulnerable position. We therefore seek to intervene in the extant scholarship by spotlighting one factor of parentage determination that is largely sidelined: the intimate-partner relationship between two prospective parents. We anchor our approach in a preserved and widespread legal tradition—that of marital presumption, which determines that the husband of a child’s mother is the legal father of that child—but reinterpret it to better correspond to the realities of family life in the twenty-first century. We argue that, while the institution of marriage per se is becoming less relevant in determining parentage, the nature of the intimate relationship between the prospective parents should be considered central. This understanding is the basis for the non-marital presumption we develop and offer here. To underpin the foundations of our legal approach, we offer a novel comparative analysis to contrast the legal systems of the United States and Israel, examining the unique, yet overlooked, role that the intimate-partner relationship has played in determining legal parentage over recent decades. We show that, despite the increasing prominence of biology, intent, and function in this arena, the intimate-partner relationship has served—and continues to serve—a crucial role in both legal systems. In light of the legal trend identified here, we then propose and defend a new position, viewing the intimate-partner relationship as a standalone factor for the purpose of at-birth parentage determination. Notably, in the proposed approach, when a child is born into a committed, intimate, partnership—be it opposite- or same-sex, married or unmarried—then both parties to that partnership will be presumed to be the legal parents of the child. This is a non-marital presumption that we call the coupledom-based presumption. Further, we argue that the coupledom-based presumption has the potential to improve how the law relating to parentage determination is currently framed in two complementary ways. First, it responds to the reported shortcomings of other common factors for establishing parentage. Importantly, it helps accommodate the nuanced needs of many families that, at present, remain unmet—primarily, unmarried couples, same-sex couples, and families from lower socio-economic backgrounds. Second, even where applying this presumption might not lead to a significantly different outcome, it actively supports other worthy values—mutual commitment, care, and trust—that are much-needed in the parenthood context. To demonstrate its fitness-for-purpose, we develop its criteria to exemplify how it could be applied to different life scenarios.
- Book Chapter
- 10.1108/s1530-353520230000022012
- May 15, 2023
The family, as the most basic social institution, serves as the bedrock of any society. Family structures worldwide have undergone various changes in their forms, nature, and functioning, including Abia state, Nigeria. The Nigeria Civil war is one of the symbolic events attributable to changes in the Abia family structure. Changes in the family structure could influence conjugal relationships. The study explored the dynamism and changes in the family structure and conjugal relationships at different eras of the family life cycle in Abia society. A qualitative research method was used in this study. Twenty-two participants (4 life history and 18 in-depth interview participants) were recruited in this study with purposive sampling techniques. Using an archival checklist, life histories, and an in-depth guide, information was elicited on family structure and conjugal relationships. The study was subjected to thematic analysis. The findings revealed dynamism and changes in family structure, with polygyny being most prevalent prior to the civil war, the emergence of step-parent and single-parent families during the civil war, and monogamy being most prevalent, with increasing single-parent and step-parent families contemporaneously. The conjugal relationship shifted from having concubines (acceptable and practised covertly) to having side chicks (been practised covertly). The Nigerian civil war had an impact on the observed dynamics in family structure during the civil war and immediate post-civil war. Other factors such as religion, education, civilization, and migration, among others, influenced the contemporary Abia family structure. Understanding family structure dynamics could be useful in solving issues regarding family and conjugal trajectories.
- Research Article
67
- 10.1111/j.1549-0831.1992.tb00461.x
- Jun 1, 1992
- Rural Sociology
Our main objective is to give demographic perspective to changes since 1960 in the comparative economic circumstances of non‐metropolitan and metropolitan children. Specifically, we examine absolute and relative poverty rates using child records from the 1960, 1970, and 1980 Public Use Microdata Samples and from the 1990 March annual demographic file of the Current Population Survey. Results reveal that more than one‐in‐five nonmetropolitan children today are poor, an increasing proportion are deeply impoverished, and a growing share are living in families with incomes lagging standards typical of the average American family. Changes in family structure accounted for roughly 60 percent of the increase in nonmetropolitan child poverty during the 1980s. Positive economic effects associated with increasing female employment, rising education levels, and declining family size in nonmetropolitan areas were more than offset by the deleterious effects of changing family structure. And the persistently higher rates of nonmetropolitan than metropolitan child poverty cannot be explained away by compositional differences in parental employment patterns, educational levels, or family size. Our results suggest that recent changes in family formation and structure cannot be disassociated from the changing economic welfare of children, especially for those living in nonmetropolitan America.
- Research Article
10
- 10.1017/s1755048316000730
- Nov 24, 2016
- Politics and Religion
The central claim of this article is that the multi-dimensional changes in the modern family structure may be explained as a manifestation of the simultaneous processes of secularization and religionization. On the one hand, the rising acceptance of secular alternatives to the traditional family structure indicates that modernization processes weaken religious behavior and authority, as the classical secularization thesis has claimed. On the other hand, ongoing loyalty to the religious family patterns, and even their relative intensification, reflect the opposite trend. Serving as a case study, the changes in the Israeli religious family structure — reflected by civil marriage, cohabitation, and out-of-wedlock children — clearly illustrate how modernization generates horizontal and vertical fragmental processes in which religion and secularism supplement as well as compete with each other, creating an increasingly divided society in which religiosity and secularism flourish side by side among various groups and within distinct realms.
- Research Article
109
- 10.3138/jcfs.45.1.31
- Mar 1, 2014
- Journal of Comparative Family Studies
China has seen a rapid urbanization and industrialization, and a dramatic improvement in the quality of life and living conditions since its economic reform started in 1980s. The changes in the social and economic context, and implementation of One Child Family Policy led to noticeable changes in family structure and relationship. While traditional extended families exist, there occur multiple forms of Chinese families, i.e. nuclear families, single-parent families, DINK families, the single person household and the cohabitant household. Some scholars view the changes as the deterioration of marriage and family values and growing emphasis on individualism. The current paper critically analyzes the major studies of Chinese families to understand the changes in family relationship, structure and values over the past 30 years. Three questions are asked: Has Chinese family become nuclear in structure and diverse in form? Have Chinese shifted their values from collective interests to individual interests? Has Chinese marriage become less important? The extended family is the dominant functional family form in which children and elderly are taken care of while nuclear family is the most common form. Single-person family, singleparent family, remarried family and childless family are a fraction of the population. Families continue to prioritize collective interest over individual interest. Overall Chinese value marriage. The first marriage is postponed. Premarital sex is less stigmatized, but cohabitation remains marginalized. Contemporary family is fluid and dynamic.
- Research Article
1
- 10.3390/land13071025
- Jul 9, 2024
- Land
Amid rapid urbanization, shantytown redevelopment profoundly transforms urban environments and catalyzes substantial changes in social, economic, and family structures. Yet, most previous studies have focused narrowly on the outcomes of single residential mobility events, overlooking the complex dynamics that unfold across the pre-redevelopment, during-redevelopment, and post-redevelopment phases. This study investigates changes in family structure and their correlation with living space throughout all three phases of shantytown redevelopment in Heze City, Shandong Province, China, from 2016 to 2023. Collecting data through a community survey, we gathered 1035 valid responses to analyze family structure and residential characteristics. Our analysis, which included Sankey diagrams and cross-lagged panel models (CLPM), revealed a predominant trend of large families fragmenting into smaller nuclear units and demonstrated a significant positive correlation between family structure complexity (FSC) and living space. Notably, the FSC from a previous phase had a significant influence on the living space of the following phase, indicating lagged effects where housing choices are influenced by prior family structure. Further comparisons across different housing types and tenures during the temporary phase highlighted diverse structural changes among families. These insights are crucial for policymakers to refine urban redevelopment strategies, better meet residents’ needs, and enhance the efficacy of policies.
- Research Article
- 10.1163/156853182x00164
- Jan 1, 1982
- Asian Journal of Social Science
Changes in the South Indian Hindu Family Structure in West Malaysia
- Conference Article
- 10.22616/esrd.2021.55.058
- Jul 30, 2021
Nowadays, we can observe various changes in family structure, which lead to the need to change the traditional understanding of the family. These changes can be explained by the prevalence of the globalization process in society, which have affected almost all spheres of life, including the family institute. Within the article, based on the analysis of statistical data and literature, the current trends of changes in family structure and related challenges will be described. When analysing changes in family structure, it is necessary to focus on both - structural and qualitative changes, which were reflected in the composition of families, trends in marriage registration, as well as in relationships between family members. The most characteristic changes show increase of such families with children where cohabiting partners are living together without registering the marriage as well as decreasing amount of nuclear families and increasing amount of single-parent families. This trend leads to other qualitative changes in family structure - several challenges of social policy because single-parent families often face different problems related to effective functioning of the family. For example, single-parent families with children are more often at risk of poverty than nuclear families, as well as face various types of problems in meeting the needs of the family. Social policy planners, when designing support for families with children, should take into account the specifics of single-parent families and provide them support according to the needs of these families, without waiting when families will fall into the social risk category.
- Research Article
2
- 10.1007/s11162-016-9445-8
- Jan 6, 2017
- Research in Higher Education
Research has shown that family structure changes negatively influence educational attainment, but they overlook qualitative distinctions in college choice, such as college selectivity. Yet, college choice research has largely focused on static measures of family structure, failing to account for year-to-year family structure changes that occur during high school. We merge literature in family and college choice to investigate the role of family-life events on college choice. We found family structure changes that occur early and late in high school influence the selectivity of the college where a student applies, and this relation persists in spite of controls for race, gender, family background, and pre-high school family structures. Including educational expectations, parent–student discussions, and coursework rigor account for the negative association between family structure changes during high school and the selectivity of the college where a student applies. However, late family structure changes during high school continue to correlate negatively with a student’s college enrollment, potentially reflecting realities and financial burdens of attending college, especially selective colleges.
- Book Chapter
2
- 10.4324/9781003319924-8
- Aug 11, 2022
Family has always been one of the strongest institutions in the African American community. However, over the past 30 years, massive changes have occurred within the structure of African American families, resulting in many fathers living apart from their children. Applying the basic tenets of Critical Race Theory (CRT) and Michelle Alexander's notion of Racialized "Game Changing," this article examines the social, political, and economic factors that have worked to undermine normative Black fatherhood involvement and family formation patterns over time. Two of the major arguments—the slavery argument and the cultural argument—offered in the empirical research literature in an attempt to explain the shifts that have occurred within Black families historically are also examined, followed by an in-depth discussion and analysis of factors that underlie the changes in Black family structure and formation over time. The article concludes with a set of policy recommendations for strengthening Black fatherhood and family formation in the 21st century.
- Research Article
22
- 10.1080/19371918.2018.1562406
- Jan 2, 2019
- Social Work in Public Health
ABSTRACTFamily has always been one of the strongest institutions in the African American community. However, over the past 30 years, massive changes have occurred within the structure of African American families, resulting in many fathers living apart from their children. Applying the basic tenets of Critical Race Theory (CRT) and Michelle Alexander’s notion of Racialized “Game Changing,” this article examines the social, political, and economic factors that have worked to undermine normative Black fatherhood involvement and family formation patterns over time. Two of the major arguments—the slavery argument and the cultural argument—offered in the empirical research literature in an attempt to explain the shifts that have occurred within Black families historically are also examined, followed by an in-depth discussion and analysis of factors that underlie the changes in Black family structure and formation over time. The article concludes with a set of policy recommendations for strengthening Black fatherhood and family formation in the 21st century.
- Research Article
14
- 10.1108/ijssp-05-2014-0034
- Jun 8, 2015
- International Journal of Sociology and Social Policy
Purpose – The purpose of this paper is to look into marriage patterns and family structure and changes therein over the period of 50 years. Reasons for change in marriage patterns are also included. It also includes marriage arrangements in the village by time periods. The latter part of the paper explores changes in family structure and its relevant reasons over the decades. Design/methodology/approach – Survey was conducted to attain and assess the required information. An interview schedule was developed as a tool for data collection. Systematic sampling technique was used for the selection of the respondents (aged 55+). These respondents were assumed to have observed the changes over the decades. The results were based on trend analysis from 1960s through 2008. Findings – The results showed that material exchanges on the vital events have declined with the exception of marriage occasion over the period of time. The data shows that most of the marriages were taking place between close relatives from 1960s through 1980s. Substantial decline in these marriages was replaced by corresponding increase in inter-caste marriages after 1990 due to education and economic factors. During the same period, a shift is observed from joint family system to nuclear one. Social implications – Policy makers might consider various social trends to manage changes in a traditional society. Originality/value – This paper focusses on changes in marriage patterns and family structure along with their pertinent causal factors in a rural community of the Punjab, Pakistan.
- Research Article
21
- 10.1016/j.ssmph.2020.100572
- Mar 25, 2020
- SSM - Population Health
A common view within academia and Indian society is that older Indians are cared for by their families less than in the past. Children are a key source of support in later life and alternatives are limited, therefore declining fertility appears to corroborate this. However, the situation may be more complex. Having many children may be physiologically burdensome for women, sons and daughters have distinct care roles, social trends could affect support provision, and spouses also provide support. We assessed whether the changing structure of families has negatively affected health of the older population using three cross-sectional and nationally representative surveys of India's 60-plus population (1995–96, 2004 and 2014). We described changes in self-rated health and family structure (number of children, sons, and daughters, and marital status) and, using ordinal regression modelling, determined the association between family structure and self-rated health, stratified by survey year and gender. Our results indicate that family structure changes that occurred between 1995-96 and 2014 were largely associated with better health. Though family sizes declined, there were no health gains from having more than two children. In fact, having many children (particularly daughters) was associated with worse health for both men and women. There was some evidence that being sonless or childless was associated with worse health, but it remained rare to not have a son or child. Being currently married was associated with better health and became more common over the inter-survey period. Although our results suggest that demographic trends have not adversely affected health of the older population thus far, we propose that the largest changes in family structure are yet to come. The support available in coming years (and potential health impact) will rely on flexibility of the current system.
- Research Article
- 10.34041/ln.v29.984
- Dec 11, 2024
- lambda nordica
Prospective parents in LGBTQ families often require donated gametes, fertility clinic or adoption agency services, new co-parenting partners. In addition to this, various support networks can play a meaningful role for prospective LGBTQ parents during family formation processes. In this study, we investigate how parents’ relationships with former families, kin, and others are reconfigured. Although some of the support networks in this study are referred to as “family” or “kin”, the terms are used to describe a broader set of relationships than those generally included in the terms. Limited research has been conducted on the significance of close relationships in the transition to parenthood for LGBTQ people. The present study addresses the following questions: How do close relationships affect prospective LGBTQ parents’ family formation processes? From whom do prospective parents receive support, and what kind of support do they receive? How do they describe these supportive relationships? Data were collected through interviews with parents in LGBTQ families in Finland. Face-to-face interviews (n = 18) were conducted using a semi-structured interview protocol, and the data were audio-recorded, transcribed, and analyzed via reflexive thematic analysis. Prospective LGBTQ parents were found to receive emotional, instrumental, financial, informational, and appraisal support from their inner circles during the family formation process. They defined family not only in terms of legal ties or biological kinship but also based on emotional connections with others, viewing kinship as a relationship based on individual choice. Intergenerational assistance was relevant, but close friends of the prospective parents . Conversely, a lack of support from inner circles also affected the family formation process.
- Research Article
83
- 10.1037/a0029397
- Jan 1, 2013
- Developmental Psychology
Most children in the U.S. today will experience one or more changes in family structure. The present study explores the implications of this trend for child development by investigating the conditions under which family structure changes matter most to child well-being. Using data from the Maternal and Child Supplement of the National Longitudinal Survey of Youth (N = 3,492), it estimates how changes in family structure experienced during 4 different developmental periods relate to concurrent and subsequent changes in children's behavioral trajectories. We estimate associations separately for children born to married and unwed parents to determine whether family instability has different associations with children's behavior across policy-relevant family types. Results indicate that changes in family structure during the first 3 years of life predict children's behavioral development more consistently than later changes, changes into a single-parent family have different implications for children's development than changes into a blended family, and changes in family structure matter more for children born to married parents than children born to unwed parents. (PsycINFO Database Record (c) 2013 APA, all rights reserved).
- Research Article
27
- 10.1007/s13524-013-0258-5
- Nov 16, 2013
- Demography
Family structure change can disrupt the settings of children's daily lives. Most scholarship focuses on disruption in the home environment. Moving beyond the home, this study explores the association between changes in family structure and changes in several dimensions of early child care. With longitudinal data from the NICHD Study of Early Child Care and Youth Development (n = 1,298), first-difference models reveal that family structure transitions are associated with changes in the type and quantity of early care as well as the number of care arrangements used, especially during the latter part of infancy. Given prior evidence linking these child care dimensions to behavioral and cognitive outcomes, these results suggest a policy-relevant mechanism by which family change may create inequalities among children.
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