Although family law is very much concerned with legal parentage and its attendant rights, children are much more concerned with maintaining relationships with those who care for them, regardless of whether that person is a legal parent or someone functioning as one. What happens though if the child's legal parent attempts to banish the quasi-parent from the child's life? Doing so can be extremely damaging to the child. Nonetheless, parents do possess a constitutional right to make decisions about how to rear their children, including who may have access to the child.
Trying to strike a balance between protecting the child and safeguarding the parent's right is a daunting task. The Supreme Court has provided little guidance on this issue, having written only one opinion on the subject, Troxel v. Granville, that only obliquely deals with the subject of quasiparenthood. Still, the states have relied on Troxel to craft a number of different approaches to the challenging question of quasi-parenthood.
As Troxel nears its twentieth anniversary, however, a problem has emerged. In implementing Troxel, the states have by and large treated the traditional nuclear family model as normative, using it to create a "law of quasi-parenthood." This approach is problematic for two reasons. First, since * Troxel was decided, the composition of the "nuclear family" has drastically changed. From the legalization of same-sex marriage to the increase in divorce, cohabitation, and remarriage, fewer and fewer children are raised by their two legal parents. Second, for a significant portion of the American population, including racial and ethnic minorities, the nuclear family model has never represented the typical family structure, with children often being reared by members of the extended family.
By premising the law of quasi-parenthood on the outdated and unrealistic nuclear family model, more and more children do not receive the protections that the law of quasiparenthood was intended to provide. This Article traces the history of quasi-parenthood, analyzing how the law has evolved into a current practice that is, much to the harm of American children, both shortsighted and underinclusive. The Article concludes with concrete suggestions for changechanges that will hopefully spur a legal standard for quasiparenthood that is less discriminatory and more reflective of the contemporary American family.
Michael J. Higdon,
The Quasi-Parent Conundrum,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol90/iss4/2