Miller v Jenkins

MichaelR

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There are many ways to support either side in the referendum and, honestly, the part about "normalizing homosexuality" would, on its own, swing me to vote yes. It's not the business of the state to tell people what kind of sexuality is normal, violence excepted. (The exact definition of violence is not for this particular topic; it is generally agreed that sex of an adult with an adult who does not consent, with a person under a certain age, or with a beast is inherently violent, while anything between fully cnsenting adults is not, and I'd leave it at that for the purpose of this thread).

But there is something else - cresting purely statutory same-sex parenthood in the Constitution - that is the main reason I'm thinking of voting no. And not because I have a problem with same-sex couples or other non-traditional families raising kids - sure let them, as long as the actual natural parent is ok with it. That's what power of attorney is for.

What really horrifies me is the idea that a person who can't be a parent of the child gets the same rights as the actual parent - and, in a conflict, might prevail over the parent.

There is a very real example in the USA: Miller v. Jenkins - Wikipedia, the free encyclopedia . Lisa Miller at one time wanted to raise her daughter with her partner, and while she did so want, more power to her. But because the partner became, in legal fiction, a "mother", her rights persisted when Lisa had a change of view. As a result, Lisa had to flee the USA with her daughter and is legally accused of kidnapping her own daughter from her friend (!!!).

I do realize that even if the Referendum were to fail, a similar case could happen in Ireland under the Family and Relationships Act (not sure I have its name right). But it would likely end up in the Supreme Court, and without the Referendum, the mother would have a fair chance of standing her ground in the Supreme Court because she is the one actual parent. With SSM, the real mother would have no advantage over the legally-fictional mother in a case like this.

I would therefore appreciate comment from all sides on Miller v Jenkins or possible similar cases. Cases when rights of a natural parent and a purely legal parent actually collide.
 
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Jezza

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How would this be any different to the rights of a hetro step-parent?
 
E

Elbereth

There are many ways to support either side in the referendum and, honestly, the part about "normalizing homosexuality" would, on its own, swing me to vote yes. It's not the business of the state to tell people what kind of sexuality is normal, violence excepted. (The exact definition of violence is not for this particular topic; it is generally agreed that sex of an adult with an adult who does not consent, with a person under a certain age, or with a beast is inherently violent, while anything between fully cnsenting adults is not, and I'd leave it at that for the purpose of this thread).

But there is something else - enshrining the legal fiction of same-sex parenthood in the Constitution - that is the main reason I'm thinking of voting no. And not because I have a problem woth same-sex couples or other non-traditional families raising kids - sure let them, as long as the actual, real parent is ok with it. That's what power of attorney is for.

What really horrifies me is the idea that a person who can't be a parent of the child gets the same rights as the actual parent - and, in a conflict, might prevail over the parent.

There is a very real example in the USA: Miller v. Jenkins - Wikipedia, the free encyclopedia . Lisa Miller at one time wanted to raise her daughter with her partner, and while she did so want, more power to her. But because the partner became, in legal fiction, a "mother", her rights persisted when Lisa had a change of view. As a result, Lisa had to flee the USA with her daughter and is legally accused of kidnapping her own daughter from her friend (!!!).

I do realize that even if the Referendum were to fail, a similar case could happen in Ireland under the Family and Relationships Act (not sure I have its name right). But it would likely end up in the Supreme Court, and without the Referendum, the mother would have a fair chance of standing her ground in the Supreme Court because she is the one actual parent. With SSM, the real mother would have no advantage over the legally-fictional mother in a case like this.

I would therefore appreciate comment from all sides on Miller v Jenkins or possible similar cases. Cases when rights of a real parent and a legally fictional parent actually collide.
What the hell is a "legally fictional parent"?
 
E

Elbereth

Some people are real biological parents.

Others get parental rights without being biological parents, so their parenthood is a legal fiction.
No, it isnt. You're saying that all non-biological parents to children across this state are a legal fiction, which would include step-parents, adoptive parents and those acting in loco parentis.

Mad stuff altogether these NO voters come out with. Mad!

:roll:
 

MichaelR

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No, it isnt. You're saying that all non-biological parents to children across this state are a legal fiction, which would include step-parents, adoptive parents and those acting in loco parentis.

Mad stuff altogether these NO voters come out with. Mad!

:roll:
Yes, this is exactly what I would say (except those acting in loco parentis as they are often called guardians, not parents). But "legal fiction" does not equate to the colloquial use of "fiction". For example, as far as I understand, you and I have very real money which is nevertheless a legal fiction because it is created by state law as opposed to existing in objective reality. Gold is "physical" money; the Euro is "legal fiction".
 

Accidental sock

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We need a Jeremy Kyle forum.....

 

silverharp

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grand so , off to kidnap some adopted kids from fictional parents
 

He3

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@accidental sock

We do, and then someone might deal with this -

I'll see your religious law requiring rapists to marry their victims, and raise you laws in 31 American States that thanks to 'family values' laws have created the situation where rapists have full parental rights.

'The Daily Show's Samantha Bee did an eye-opening report about rapists and parental rights.

Case in point, sixteen year old girl gets raped by 40 year old man. Man goes to prison, gets out, sues for his custodial rights and now girl has to see him every weekend when he shares custody with their child. Not a hypothetical, watch the link, and know in America over 10,000 rapists a year sue for custody of their rape babies, that women are forced to have because these same states put so many restrictions on abortion many do not have access or funds to get one.

The pro-family anti-abortion religious crowd thinks this is fine as children need both parents, even when one of them has a history of raping children.
People get up to all sorts of stuff.

Singling LGBT people out for special treatment because of their sexuality is just wrong. That day belongs to the past. I hope we consign it there next month.
 

HappyLurking

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Some people are real biological parents.

Others get parental rights without being biological parents, so their parenthood is a legal fiction.
As a stepfather to two wonderful children, I'd just like to thank-you for opening my eyes to the "legal fiction" that is our relationship.

Up until now, having lived them and raised them since they were toddlers I had thought of them as "my" children. I now realise that was just a "legal fiction" and in fact they're nothing to me.

On foot of your advice, I shall turf them out of "my" house immediately (also a legal fiction since it's really the bank's house) and leave them to the tender mercies of their delinquent mother. She left the country some time ago but I'm sure they'll find her eventually because of that wonderful biological thing.

Thanks again, you've saved me no end of money and effort.

Idiot.
 

Radix

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What the hell is a "legally fictional parent"?


Badge engineering. You know the idea, let's call the Lada an Aston Martin, and hey presto... A bit like Adam and Steve and SSM.

'Magic', as Mercurial might say.
 

ShoutingIsLeadership

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Motherhood has nothing to do with marriage. Our constitution considers the mother to be the person who gave birth to the individual.
 

sic transit

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In all honesty the question of defining parenthood is probably at the centre of many concerns about what marriage will look like. It's not part of the amendment but will be a large part of any discussion on any family legislation linked to the amendment.
 

Emily Davison

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But there is something else - enshrining the legal fiction of same-sex parenthood in the Constitution - that is the main reason I'm thinking of voting no. And not because I have a problem woth same-sex couples or other non-traditional families raising kids - sure let them, as long as the actual, real parent is ok with it. That's what power of attorney is for.

What really horrifies me is the idea that a person who can't be a parent of the child gets the same rights as the actual parent - and, in a conflict, might prevail over the parent.

.
It's a good question, it's always good to question what your understanding of the referendum is.

Basically you are a yes voter. This law will allow gay couples to marry. That's all. The rights of children is covered under separate laws.

You've picked an American case. But a few months ago there was a case in Ireland along the lines you outlined. Prior to this referendum. If memory serves me correctly it was mother with child separated from and married another, she died, genetic father wanted custody or joint custody. Tragic case. You had custodial dad and genetic dad fighting. It was acrimonious.

It's very difficult in a breakdown of a relationship, an abandonment, a divorce, a parent hell bent on vengence to legislate for all situations. So there are legal mechanisms in place to try and resolve those issues. Things like adoption.

I do not see how any legal mechanism would work that would allow the non custodial, though genetic parent a say if they give up their rights. It is up to parents to look after their children. Ireland is awash with children being brought up with single parents, where the other has zero interest. Most of them do it very well.

All of these will not change with the referendum. As far as I can tell the one difference it will make to children is that it will allow married gay couples to adopt, jointly, currently legally only one of them can adopt. Singly. These would be very rare cases.

Outside of adoption, currently a gay couple with a child, in general one is genetic and the other parent a non interested donor. Or a family donor who helped a sibling. The child will now be allowed be adopted by the partner/non genetic parent, who is effectively a parent already.

These things bring stability to family life. The child is more secure in a more bonded, legaly, relationship, with all the rights and obligations of a 'real' parent.

What you are trying to say, I think, is that you want the 'other' genetic parent to always have a legal say. (power of attorney) Those that donate in general do not have any interest and do not want to pay for a child. Those that separate, they have the legal right to fight for custody. But it is no different to whether the other couple are hetro or homo. That will not be the issue.

(sorry this is a bit all over the place)
 
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ShoutingIsLeadership

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In all honesty the question of defining parenthood is probably at the centre of many concerns about what marriage will look like. It's not part of the amendment but will be a large part of any discussion on any family legislation linked to the amendment.

How can it change motherhood?
 

sic transit

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I used the word parenthood and it wasn't aimed at you. It can do if surrogacy is involved.
 

sic transit

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I know you did, that's why I narrowed it down to motherhood. How would SSM change motherhood?

Not aimed at me? Didn't think that it was!
Again I don't know why you're asking me. It's not a prerequisite to be married to be a mother.
 


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