Kevin Maillard on Children as Property

parents_property_tshirtBy Kevin Maillard – Download 39 page PDF document

Here is the abstract:

Despite the collective view in law and social practice that it is intrinsically taboo to consider human beings as chattel, the law persists in treating children as property. Applying principles of property, this Article examines paternity disputes to explain and critique the law’s view of children as property of their parents. As evidenced in these conflicts, the Article demonstrates that legal paternity exposes a rhetoric of ownership, possession, and exchange. The law presumes that a child born to a married woman is fathered by her husband, even when irrefutable proof exists that another man fathered the child. Attempts by non-marital biological fathers to assert parental rights regularly fail, as states allow only one father to “claim” the child. This approach treats the nonmarital father as a trespasser and categorically favors the fundamental due process rights of the marital father.

Analyzing these family law cases along a property framework offers a rethinking of the law’s imbalanced treatment of unmarried fathers. The law’s current approach to paternity disputes reflects a classic model of property rights and ownership rooted in static, rigid, and exclusive claims. This framework ignores the interests of children in their biological fathers while overestimating the reproductive normativity of marriage.

This Article joins in recent discussions of “stewardship” models of property that engage the complexities of nontitled claims to property. It draws upon constitutional law, property theory, and political philosophy to assert the possibility that the interests of children are better served by protecting and nurturing those relationships (i.e., those with the biological father) that are normally defeated by traditional appeals to substantive due process. By highlighting the claims of nonmarital, biological fathers divested of standing to assert paternal rights, this Article suggests a turn to a fiduciary ethic that entertains the unique legal status of a “transitive family.” This engagement of a textured–as opposed to flat and conclusory– model of the hybrid marital/nonmarital family recognizes the unwed father’s property rights in the child as nontitled, while the marital unit acts as a fiduciary caregiver with legal rights to the child. By embracing the counterintuitive notion of children as property, this Article argues for a redirection of the existing framework of property theory to a productive model for the family that champions the best interests of the child in tandem with the constitutional interests of both marital and nonmarital parents.

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