A court decision in Ohio has ruled that grandparents may have visitation rights for their grandchildren even when a parent disagrees.  This interests me in a couple of ways: not only the definition of "family," but the nature of rights and the law from a Confucian perspective.

    First, the outline of the case.  It seems that the child in question, we will call her B., was born to a single mother, and the mother lived with her parents, B’s grandparents.  When B  was 2 years old, her mom died, and she continued to live with her grandparents for a short time.  Then, a court awarded custody to B’s father, presumably whom she had not lived with until that time, and the father got into a legal battle with the grandparents over their visitation rights.  The court settled the question in favor of the grandparents who now can visit B on a legal basis.

     I think the outcome is right: the grandparents should be a part of the child’s life.  But it is not clear to me that this should be true under all circumstances.  What matters is not some sort of abstract legal definition of a "grandparent," but the actual experience of contributing to the care and growth of the child.  In this case, with the father’s apparent abdication of his child-rearing responsibilities (why was he not living with the mother and child?), it seems to me that the grandparent’s claim is at least as strong as the father’s, although that might not be true in other cases.

      My reading of this case draws upon a classical Confucian sensibility (I am using the modifyer "classical" because the legal uses of Confucianism in imperial China undermined what I believe is the classical expression of Confucian ethics).  From that point of view what matters in the definition of a family is not the claim of a right as a parent or grandparent, but the actual performance of the duties of a parent or grandparent.  B’s grandparents did their duty, they helped raise the child, they directly (and I assume, lovingly) carried out the daily tasks of feeding her, changing her, comforting her, watching over her.  To a Confucian that actual experience is what counts.  If a person does not live up to and enact the social role of "parent," then he or she is not really a "parent."  There is no universal category of "parent" to which all people with children belong and, therefore, enjoy the same rights of parenthood.  Rather, for a Confucian, parenthood is a duty that has to be fulfilled, and when it is fulfilled, then a person can invoke whatever rights that might come along with the accomplishment of the relevant duties.  Nothing is automatic.

     So, it will come as no surprise that I am dubious of the father’s claim here.  All I am going on in the NYT report, so I will not go too far in disparaging the father’s standing.  But the fact that he was not in the house, doing the daily duty of raising the child, suggests a certain abdication of his rights as father.  If I were the judge, I would place the burden of proof on him to demonstrate that he was, in fact and in action (not just in genes), a father.

     Now, redemption is always possible for Confucius.  So, if the father was recognizing that he needed to step up and care for the child, then he should be given the chance to live up to the social duty of fatherhood.  We can all always do better in cultivating our closest loving relationships.  But this should in no way justify cutting the grandparents out of the picture.  Perhaps the father does not like them: that should not matter.  What matters is that the grandparents did the right thing and, in that, they created rights for themselves regarding the child’s future. 

    There is one more facet of this case that bears commentary.  If we were to follow a Confucian perspective on the law, judges would have to decide, in each case, the extent to which parents and grandparents were performing their social duties.  It would not be enough to establish a general principle or category – i.e parental or grandparental rights – because the morally best outcome would be determined by the particular behavior in each case, not the universal rights invoked.  Such an approach would make the law more particularistic than we are used to, and it could be open to abuse if a judge were to misjudge or, worse, purposefully misconstrue, the facts of who was doing what in specific cases.  Yet as B’s case demonstrates, it does matter whether a father is truly being a father, or grandparents are truly being grandparents.  And those social facts must be integrated in court judgments.