From time immemorial the different religions of the world have advocated that a child have a parent. The concept is also reflected in the laws of the different nations and the international treaties. The question to be answered in this context would be who should be assigned the right of parenthood, is it the biological parent or social parent or can both be assigned the rights of parenthood.

Definition of Child

A child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. Earlier a child was considered to be the property of the parent but now children are neither the property of their parents nor are they helpless objects of charity. They are human beings and are the subject of their own rights and responsibilities appropriate to his or her age and stage of development. Recognizing children’s rights in this way firmly sets a focus on the whole child. Previously seen as negotiable, the child’s needs have become legally binding rights.

Concept of Parenthood

Family is the most fundamental basic unit in the society and the society’s interest in establishing parenthood of children is not new. The society can be said to have collective responsibility for the child’s well being, but it is the parents who are given the primary responsibility of bringing up the child. It is presumed that the parent has the best interest of the child in mind. 

The parents can generally be classified into two they are the biological parenthood who is conferred parenthood rights based on the genetic or biological connection between the parents and the child. Secondly the social parenthood, which is based on criterion like social attachment and affection between a non biological parents and the child.

In law, parenthood is the legal acknowledgment of the parental relationship between the parents and a child, usually based on several factors which are with a few exceptions, an exclusive status. A child depends on his parents for a number of reasons they may be financial, emotional or/and developmental.

Parents are autonomous, possessing comprehensive privileges and duties that they share with no one else. When these elements are present in the same parents, then the concept of single parenthood works. In some cases these elements are not necessarily present in the same parents. When they are not, the different elements that form our compound concept of parenthood may point to different parents. 

In order to determine parenthood there are various theories like Legal parenthood theory, genetic model theory, intent model theory and labour theory of parenthood, but none these theories of ascertaining parenthood do not consider the rights of child as they consider more of rights of parents. It is seen that these theories have approached the problem in a wrong way. What is more important than determining the parent’s rights is to give central focus to the rights and welfare of the child?

Evolving Theories of Child Development

Evolving theories of child development and the sociology of childhood can tell us the ways in which the courts take into account the children’s views in the resolution of custody disputes. The CRC (Convention on the Rights of the Child) is very aggressive about promoting a healthy parent-child relationship through invocation of children’s rights with the assistance by State intervention. However; it nonetheless affirms a key principle well known to many States, namely, the “best interests of the child” standard embodied in Art. 40. This article is very explicit in acknowledging that the rights of the child must be seen within the family context and balanced with those of the parents when it requires that the standard “take into account the rights and duties of parents.” 

The traditional view is that “rationality” is what gives human beings rights, and that children, lacking certain parts of rationality, do not have the full complement of rights this theory is endorsed by Locke and Kant.

The traditional view has evolved to some extent; Article 12 of the CRC recognizes the right of children to meaningfully participate in proceedings affecting their interests. At the same time, the Convention acknowledges that a child’s maturity should influence the weight to be given to the child’s wishes and that the manner of a child’s participation need not be direct. Sometimes referred to as the doctrine of “evolving capacities,” the theory underlying Article 12 is that as children grow towards maturity, they should be given rights in accordance with their varying stages of development.

The judiciary and legislature have ignored the child’s voice, when they express view contrary to what the judge believes is best for the child. On the other hand, the Convention’s emphasis on the child as a possessor of rights and evolving autonomy could be interpreted to mean that children should be deemed presumptively competent to express their wishes in a custody dispute unless the judge is persuaded that a particular child is so immature that his or her expressed views are unreliable.

In combination with each other, these principles mark a significant development in the approach of international law to the child. The traditional focus has been on adopting a welfare-based approach to children, concentrating on their need for special protection and assistance. When it is considered with Art.6 (2) which seeks to secure, to the maximum extent possible, the survival and development of the child Art.3 (1) assists in placing greater attention on the aims and objectives of the welfare-based approach. However, it is together with Art.12, which provides for children to have their views heard in accordance with their age and maturity, and Art.5, which recognises their evolving capacities, that the best interests of the child takes on a dynamic-rights based approach, which highlights the need to recognise their participatory rights.

These theories, even though progressive in the acceptance of the child’s view, still adopted the traditional view towards assigning parenthood. In some limited areas, the doctrine of exclusive parenting seems to be eroding. This is reflected in the area of joint custody after divorce. After a long history of primary or sole custody being awarded to one parent, states began to recognize that a divorce resulted not in the end of a parent-child relationship but in a re-ordering of those relationships. Still the socially accepted view of parenthood is that a child should have a single set of parents. The parents may be living separately but may be granted joint custody. A third person will not be brought into this equation. A person who may have put in the same efforts on behalf of the child, and who is to the same extend concerned about the welfare of the child, will be excluded from this equation because he does not have the legal standing. He will not be granted the same rights and privileges that of the legal parent. And the child’s relationship with his biological or social parent will be severed. 

According to Attachment theory, disruption and separation from the parents during early childhood are associated with human attachment problems. Experts have also determined that a disruption in a child’s contact with a parent inhibits the successful formation of the child’s identity. In fact, some experts have correlated the favourable development of a child’s self-esteem with longer visits with the non-custodial parent.

Multiple Parenthood

A new approach to family law jurisprudence can assist decision makers to account for the realities of families lives when determining family legal issues. The therapeutic jurisprudence perspective or assessing the therapeutic impact of adjudication, offers a useful philosophy around which to structure family law decision making. To accomplish this family law reform, a significant part of the task becomes creating a jurisprudential model that assists judges to fashion therapeutic interventions and outcomes for individuals and families.

John Rawls in the theory of distributive justice, has highlighted that the conception of justice must begin by touching the basic structure of society which includes the family, the legal system the government and other social institutions. 

Rawls also opined that reasonable pluralism, imbibing that members of society are not biased to a single comprehensive, moral, religious or philosophical doctrine, when applied would procreate a just society which is well ordered and based on a fair system of social corporation. 

Perceiving in consonance with Rawls statement, it can be affirmed in positive that the social institution of family should never be run on a pre-notion which confirms to a belief which is founded on consistent conventional morals. The concept of family and child rights is a constantly evolving one. Even thought the basic structure of the family still remains the same with the passage of time many changes in the structure have been made. Multiple parenthoods are justified based on this theory. 

When two set of parents are willing to support and take care of the responsibilities, can the action of court in selecting one and excluding the other be treated as in the best interest of child. Based on the arguments for deciding parenthood I would like to state that in such circumstance excluding one set of parent whether the biological or the social cannot be considered to be in the best interest of the child. The concept of multiple parenthoods, which is assigning parenthood rights on more than one set of parents, should be recognized.

The concept of nonexclusive parenthood permits recognition of de facto parenting relationships without severing the child’s relationships with biological or legal parents. The concept builds on others recommendations that wider use be made of guardianships, permanent custodial arrangements, and adoptions that do not terminate the biological or social parent’s rights, all of which normalise parenting relationships for children who cannot live with their biological or social parents will benefit from an absolute contact with them. This right is usually recommended in the case where the child is separated from her biological parent.

Taking a Proactive Step on the Concept of Parenthood

I suggest the concept of multiple parenthoods, so that justice is meted out to all members of a family especially the child. There need to be a restructuring of the concept of family with the incorporation of the aforementioned concept, which has the feature of addressing the rights of the father, mother and child. Through this concept the system of procedural justice gets converted to substantive justice i.e. justice in terms of reality; for the justice concerns of the child.

The Courts should adopt a scheme of relative rights, by taking into account the welfare of the child and recognise parents who have genuine claims for the child. This in turn would reduce the financial burden on parents and would lead to a greater consistency to family law jurisprudence. So a parent engaging in significant social parenting without any biological connection would also support and will have an obligation towards the child which is beneficial for the child.

Thus recognising multiple parenthoods is advantageous for the child. What I suggest is that the legal system should broaden the meaning of parenthood, the concept of multiple parenthoods should be recognised, and there should be disaggregation of parental rights and responsibilities for both biological and social parents by taking into account the benefit of the child and the child’s opinion. Neither biological nor social parenthood should be preferred as a norm, but rather courts should preserve existing relationships and permit an additional relationship that serves in the child’s best interests. In fact, the best interests of a child arguably require that his or her relationships with a variety of people who play or have played an important beneficial role in the child’s life are legally recognised. But when it comes to practical application theory of multiple parenthoods, there are many problems because each parent will try to have autonomy over the child, so the court must try to resolve this by solely taking into account the welfare of the child. 

LAWZ BUREAU