January 28, 2005

To Legit

by Armen

While I didn't quote this in my posting of quotes below, my Immigration prof said something yesterday that piqued my interest. She mentioned one particular way to legitimate a child in CA that sounded a lot like a law in Ancient Athens.

The relevant CA provision is the Cal. Fam. C. Sec. 7611(d), where, "A man is presumed to be the natural father of a child if:"

"He receives the child into his home and openly holds out the child as his natural child."

Now the Athenian law, it should be made clear, required that the child be born from a woman who was legally married to a citizen. THEN, and only then:

"When an Athenian woman bore a child, it was normal for the father to make a formal acknowledgement that the child was his. This was usually done at the dekate, a family gathering on the tenth day after the birth, when the hcild was named. The dekate was a religious celebration rather than a legal requirement, but legally it was important to the child that his paternity should be acknowledged, for on it depended both his membership of the oikos [family or household] and his citizen status." Douglas M. MacDowell, The Law in Classical Athens, 91.

There are a couple of things that jumped out at me in class. The first was the obvious question of citizenship. This idea was introduced in a discussion of a case about a Haitian claiming citizenship through the naturalization of his father. Since he was never married to the mother and since there were never any formal court proceedings to award custody, this provision of the CA law was used to establish the father-child relationship.

The second is the emphasis on publicly acknowledging a child as yours. I was a bit taken to see a law like this in a Western country which is not known as an honor/shame culture, the understanding being that in honor/shame cultures the head of the household would not let a child born of shame (basically out of wedlock) into his family. This, of course, comes up quite frequently in discussions of the Birth of Jesus (I'm too lazy to sort through the google searches to offer a representitive sample). If we assume the veracity of the immaculate conception, then there's a huge dilemma facing Joseph. But of course, "Because Joseph her husband was a righteous man and did not want to expose her to public disgrace, he had in mind to divorce her quietly. But after he had considered this, an angel of the Lord appeared to him in a dream and said, �Joseph son of David, do not be afraid to take Mary home as your wife, because what is conceived in her is from the Holy Spirit." (Matthew 1:19-20, NIV). So you see the importance of legitimating children in honor/shame cultures and how this had to be explained. This is why I was surprised to see such a provision in CA law.

The more I think about it though, the more I realize that this should not be all that surprising. Aside from this religious tradition, the family remains the nucleus of American culture. If the key elements of a familial relationship exist, then that relationship should be granted all the rights and privileges thereto. Now about same-sex marriage...

January 28, 2005 8:10 PM | TrackBack

But it must be kept in mind that this is a presumption that presumably can be rebutted with DNA evidence. Query whether there would be some form of estoppel in rebutting the presumption if the man knew at the time of his actions/words triggering the statute that he was not the natural father? The extraterritorial effect of such a statute is interesting, as public policy can vary from state to state.

Posted by: Shag from Brookline at January 29, 2005 11:09 AM
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