Language Matters - How Courts Talk about Children and Parents

I read a lot of court opinions, and, to be honest, they are usually kind of dull. Judges write in a very modulated style and are not known for dramatic flourishes. But recently I’ve come across two opinions that made me take notice – one because of the amazing way it described a family and the other for using truly awful language to discuss a child.

I’ll start with the bad first. This past June the U.S. Supreme Court decided a case called Adoptive Couple v Baby Girl regarding the Indian Child Welfare Act. The case turned on whether federal law gave a birthfather who was part Native American additional rights to object to the birthmother’s adoption plan for their child. The case generated a lot of controversy on both sides (and I do not personally have an opinion one way or the other), but to me the most controversial part of the decision was the language the Court used when talking about the girl at the center of the dispute. For starters, Justice Alito used the phrase everyone hates when he wrote “Birth Mother then decided to put Baby Girl up for adoption.” Although in fairness he largely used positive adoption language in the balance of the opinion. The phrase that really got me though was when he wrote, more than once, that the child was “handed over” to her birth father. Objects get “handed over” from one person to another, children do not. The Supreme Court doesn’t normally deal with adoption cases – or any family law cases for that matter – so the justices aren’t as versed in positive language. Nonetheless, I was disappointed in the Court with how they talked about the situation.

Now the good. In D.M.T. v. T.M.H., the Florida Supreme Court was recently asked to determine the parental rights of a lesbian couple where one woman provided the egg used to conceive the child and her partner gave birth to the child. The court held that both women had constitutional rights to a relationship with the daughter they jointly conceived and reared until their relationship dissolved. The partner who gave birth to their child, who was recognized at birth as the child’s legal mother, could not prevent her ex-partner, the child’s biological mother, from petitioning for custody and visitation. The court begins its discussion of the facts with: “The child at the center of this dispute was born on January 4, 2004.” And when the court discusses the issues presented to it, the justices write,

[W]e cannot and should not lose sight of the fact that there is a child at the center of this dispute whose best interests will ultimately determine the extent to which each parent will play a role in her life through legal rights and legal responsibilities.

I love this because it frames the case not as a dispute between the battling parents, but as a discussion of the child’s needs and interests. The court examined at length the relationship of the ex-partners and paints a full picture of their lives together, not isolated moments related to the technical aspects of their daughter’s conception. It’s deeply affirming of the humanity of all three of the parties involved, and a great example of judicial writing in this complicated area.