Re: California presumptive joint child custody bill
- So why do you need a license to get married?
A LICENSE is permission to do what would otherwise UNLAWFUL.
Patrick in California
--- In email@example.com, "wlspence1" <wls@r...> wrote:
> --- In firstname.lastname@example.org, <paradoxmagnus@e...> wrote:
> > I guess that's why the government feels it can tell parents how to
> > raise their kids.
> Unless there's perceived danger to the childen---which the government
> must show to a clear and convincing standard---it's a matter of one
> parent inviting the government in, to attack the other parent. This
> bill's aim is to make that harder to do.
> Marriage is likewise essentially the recording of a contract, unless
> one of the parties calls on the state to give it an advantage over
- --- In email@example.com, "paradoxmagnus"
> So why do you need a license to get married?Historically it was intended to arrest the spread of STDs and reduce
> A LICENSE is permission to do what would otherwise UNLAWFUL.
the birth of children affected by a parent having one; the legally
more important thing is the _state_ of marriage that comes into
existence if the ceremony given legal force by the license is
It's implications regarding child custody are nevertheless rather
limited: a child born during a marriage is presumed to be the
husband's, biology to the contrary sometimes, and a child artificially
conceived is regarded as a child of the marriage; that's about it.
The latter now also obtains within a registered domestic partnership
in California, as does community property law and various entitlements
to benefits, rights to guardianship, etc.
Lawyers---canon law attorneys---were involved even when marriage was
largely the province of the ecclesiastical courts. Probably the main
force behind creating a civil notion of marriage in Great Britian and
early America was the property-owning class's interest in controlling
who could inherit their wealth.
- How is getting married an UNLAWFUL ACT that requires a LICENSE?It isn't.
When you get a marriage LICENSE, aren't you making the state a
partner in the CONTRACT?It appears so.
If so, doesn't that give the state an INTEREST in the "fruits" of
the marriage?Yup.Patrick in CaliforniaIt ain't what ya don't know that hurts ya. What really puts a hurtin'
on ya is what ya knows for sure, that just ain't so. -- Uncle Remus
- --- In firstname.lastname@example.org, <paradoxmagnus@e...> wrote:
> If so, doesn't that give the state an INTEREST in the "fruits" ofThe state asserts that anyway if, married or not, you have children,
> the marriage?
under the doctrine of _parens patriae_.
Unless one of the parents takes an issue to family court, what the
state can do to one's children is however quite circumscribed by a
series of US Supreme Court cases---stretching from the 1920s to the
present---which enunciate parents' rights as a fundamantal liberty
interest under the due process clause of the 14th Amendment.
Otherwise, what the state mainly does in marriage is provide a default
form of a contract, which can in fact be overriden in a pre-nupt'.
You can for example in many states agree before marriage that there
will be no spousal support if the marriage is dissolved, but not that
child support be waived.
- On May 2, 2005, at 5:14 PM, wlspence1 wrote:
> The state asserts that anyway if, married or not, you have children,Whatever the state may assert, it has to do it through a live human
> under the doctrine of _parens patriae_.
being acting as its agent.
If one who didn't like being the subject or object of state assertions
was really serious, (s)he would not permit unqualified or unauthorized
persons to speak or act for the state. But the decision to waive
rights to due process is a decision everyone is free to make, that's
for sure. And by all evidence, it is a very popular course of action.
- --- In email@example.com, Frog Farmer <frogfrmr@f...>
> Whatever the state may assert, it has to do it through a live humanTheir humanity and vitality is indeed questionable, but child
> being acting as its agent.
protective services and the child support IV-D agencies do have their
`counsel' who do show up in court. . . . In family court it's more a
matter of the power the Legislature has given the judge.
Yeah, too many give up too fast, but there are things like the
Domestic Relations Abstention that preclude due process that we all
should be working together to defeat.