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Background
Although the phrase "custody dispute" typically evokes images of two divorcing, biological parents engaged in a bitter
court battle, each vying for custody of their child, custody disputes also arise between biological and nonbiological parents.
The term "nonbiological parent" refers to anyone who is not
the biological parent of a child, but who has nonetheless acted
as a parent to the child. Nonbiological parents can be distinguished from persons who are "thirdparties" to a family unit,
such as babysitters,close family friends, and even grandparents
with whom the child has never lived. Nonbiological parentshave
lived with and economically and emotionally provided for the
child on a daily basis. Stepparents,gay and lesbian coparents,
foster parents, preadoptive or adoptive parents, and extended
family members, such as aunts and uncles or grandparentswith
whom the child has lived, are nonbiological parentsif they have
functioned as a parent to a child who is not their biological
offspring.
Custody disputes between biological and nonbiological parents typically are decided based on one of two custody doctrines:
the parental rights or the best interests doctrine. The parental
rights doctrine holds that biological parentshave a fundamental
right to the custody and control of their children and this right
cannot be disturbedexcept for the most cogent reasons (typically
parentalunfitness). In contrast,the best interests doctrineasserts
that custody decisions should be made with the child's best interests in mind, such that the person who is best able to meet
the child's physical and emotionalneeds should be awardedcustody (Salthe, 1990). Importantly,an underlying tension exists
between these two doctrines, thereby causing a significant
amount of doctrinal conflict in custody disputes involving biological and nonbiological parents. The best interests doctrine is
fundamentallyabout protectingthe welfare of children,whereas
the parentalrights doctrineis fundamentallyaboutprotectingthe
rights of adults within the confines of the traditionalfamily (e.g.,
biological parents raising their biological children). Children's
interests and adult'srights do not necessarily have to conflict. In
fact, for the vast majorityof children their interests and the parents' rights coincide; biological parentshave a right to the custody of their children, and it is in the children'sbest intereststo
be in the care of theirbiological parents(see Santoskyv. Kramer,
1982). However, in situations where children have developed
strong psychological attachmentsand parental-typerelationships
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father "had not taken steps to supportor legitimate" his son, the
Georgia Supreme Court found, and the U.S. Supreme Court
agreed, that he was not entitled "as a matterof due process and
equal protectionto an absolute veto over adoption of his child"
(p. 253). Instead, "any constitutionallyprotectedinterest [Quilloin] might have had was lost" on the basis of his failure to
legitimate his son (p. 254). Thus, one could argue that according
to the Court,Quilloin forfeited his rights to his child because he
did not establish a relationshipwith him. In fact, the Courtjustified its decision, at least in part, by arguing that Quilloin had
not only "never exercised actualor legal custody over his child,"
but he also had never been responsible for "the daily supervision, education, protection,or care of the child" (p. 256).
Again, although Quilloin was held accountable for never
establishinga parent-childrelationshipwith his son, a close reading of the case demonstratesthat the Court also was thinking
about Quilloin's failure to establish a "family unit" with the
child and his mother.At the outset of the opinion, Justice Marshall noted that Quilloin and the child's mother "never married
each other or established a home together" (p. 247). Even more
important,the Court emphasized that Quilloin had never been
"a defacto memberof the child's family unit," but the stepfather
who was proposing to adopt the child "was part of the family
unit in which the child was in fact living" (p. 252-253, emphasis
in original). The Court went on to justify its decision to uphold
the Georgia SupremeCourt'sruling on the basis of the fact that
"the result of the adoptionin this case is to give full recognition
to a family unit already in existence" (p. 255).
A year later in Caban v. Mohammed(1979) the Court invalidated a similar New York statute that enabled two children
to be adopted by their stepfather over the objections of their
biological father. However, unlike Quilloin, Abdiel Caban, the
father in this case, had established a "substantial"parentalrelationship (p. 387) with his children, and he had lived with their
motherfor 5 years. In fact, duringthe years they cohabited,they
representedthemselves as husbandand wife, althoughthey were
not married;even after their separationCaban continued to exercise visitation with his children.The SupremeCourtconcluded
that the New York statute that allowed unwed mothers to withhold consent regardingthe adoptionof their childrenbut did not
similarly allow unwed fathers to withhold consent was unconstitutionalon the basis of the Equal ProtectionClause. The Justices reasonedthat "the presentcase demonstratesthat an unwed
fathermay have a relationshipwith his childrenfully comparable
to that of the mother,"for after all, Caban,the children'smother,
and the childrenhad "lived together as a naturalfamily for several years" and "membersof this family, both motherand father
participatedin the care and support of their children" (p. 389,
emphasis added). Ultimately, Caban retained his rights to his
children.
The fourth unwed father case to come before the Supreme
Court, Lehr v. Robertson (1983), was perhapsthe most explicit
in its discussion of parent-childrelationshipsand the most ambiguous in its discussion of the importanceof a "family unit."
In this case the biological father,JonathanLehr, was unable to
prevent the adoption of his daughterby her stepfatherbecause
Lehr had "never had any significant custodial, personal, or financial relationship" with her, nor did he "seek to establish a
legal tie [with her] until after she was two years old" (p. 262).
The Courtrefusedto protectLehr'sinterestin his daughtersolely
on the basis of his biological tie to her. Without an established
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To summarize,each of the five unwed father cases emphasizes the importance of relationships and family units. The
Court'srulings in Stanley and Caban enabledunwed fatherswho
had established relationships with their children and who had
lived with the children's mothers in a "family unit" to retain
rights to their children. In Quillion and Lehr the unwed fathers
had their rights to their childrenterminatedbecause they did not
have established relationshipswith their children, and they had
never lived in a family unit with the mothers of their children.
Finally, in Michael H. the unwed father lost rights to his child,
despite his established relationshipwith her, because her mother
was married to another man and the child was born into that
family unit. I argue that a reading of the unwed fathercases that
recognizes the emphasis on both relationshipsand family units
and recognizes the inconsistencies and ambiguities in the ways
the Justices appliedthese two decision-makingcriteria,opens the
door for a new custody doctrine that protects established relationships and family units. I call this the family relations doctrine.
According to this doctrine, custody disputes should be decided by placing physical custody with the parentsto whom the
child is psychologically attached.Research suggests that attachments are based on the amountand kind of contact the child has
with the adult (Curtis, 1980; Goldstein et al., 1973). Daily contact with a parent and daily reliance on the parent to meet the
child's needs will increase the level of attachmentbetween the
child and the adult. Thus, although time and contact are not
perfect indicators of attachment,they do provide some insight
into the relationshipthat exists between the child and the adult.
Attachment also can be assessed on the basis of information
provided by the child, such as a stated desire to live with a
particularparent or references to the nonbiological parents as
"mom" and "dad." Typically the parentor parentsin the child's
currentfamily unit will be the adults to whom he or she is psychologically attached. By focusing on the current family unit,
the family relations doctrine protects continuity within the family.
Physical custody with one parent or set of parents would
not necessarily preclude legal rights vested in the other parent
or parents.Because the doctrineis not inherentlyadversariallike
the others, it emphasizes relationships rather than competition
between adults. Consequently, the adversarial,winner-take-all
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and contained one adult who was not biologically related to the
child (current nonbiological family unit). In Caban the Court
noted that the biological father,mother,and children had at one
time lived together in a family unit. Consequently,the Justices
made their decision to protect Caban'srights on the basis of the
importanceof protectingprevious biological family units. Even
though a new nonbiologicalfamily unit also had been established
between the children, their biological mother, and their stepfather, the Court gave scant attention to the current family unit.
The Justices apparentlysaw no reason to give explicit protection
to that relationship.In contrast,in Quilloin and Lehrno previous
family unit existed involving both biological parents but the
Court continuedto stress the importanceof family units by emphasizing the child's currentnonbiological family unit. In both
cases, the Courtjustified its decision to sever the rights of the
biological fathers to their children because doing so would legitimate the family units that already existed between the child,
the biological mother,and the stepfather.In these cases, current
nonbiological family units did enjoy explicit protection. In essence, if the Court had two family units to choose from (one
current and one previous), it emphasized the prior biological
family unit over the currentnonbiological family unit. When the
Court was faced solely with a currentnonbiological family unit,
it protectedthat family unit; in doing so biological fatherswere
divested of rights to their children. Ultimately, the Justices recognized the importance of current nonbiological and past biological relationshipsin the life of a child but they refused to do
so simultaneously.This refusal to validate both types of family
units simultaneously representsan inconsistency in the Court's
analysis of which the Justices were likely unaware. The Court
explicitly rejected the notion of nonexclusive parenthoodin Michael H.; yet, the Court'sown precedentseffectively encapsulate
the notion of nonexclusive parenthoodby recognizing the importance of past and present relationships.Nonexclusive parenthood validates past and present relationshipby suggesting that
courts allow children to maintainties to multiple sets of parents.
Given that the unwed father precedentsimplicitly supportnonexclusive parenthood,resolving the inconsistency between the
Court's explicit statementsand implicit outcomes means recognizing that, regardlessof their intent, the Justices ultimatelydid
create precedentsthat supportnonexclusive parenthood.In short,
the Court's recognition that both types of relationshipsare important is more significant than its refusal to validate each simultaneously.Thus, by using these precedentsto framethe family relations doctrine to accommodatepast and present relationships, the doctrine could be used to protect children and adults
by recognizing multiple parents.
Conclusion
Here I have argued that recent Supreme Court precedents
set the stage for a new custody doctrine-the family relations
doctrine. The hallmarkof this new doctrine is that it serves the
interests of children and adults simultaneouslyby focusing custody decision-makingon past, present, and future emotional relationships. In other words, the doctrine has the ability to preserve multiple families. Predicating the doctrine on Supreme
Court precedentincreases the legitimacy and the likelihood that
the doctrine is adopted by the states. Widespreadacceptanceof
the doctrine would be beneficial precisely because it eliminates
the problemsassociatedwith the best interestsand parentalrights
doctrines. Specifically, it accommodatesthe interestsof children
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and adults simultaneously.The family relations doctrinecan account for the psychological attachmentsof children and adults
because it emphasizes emotionalrelationshipsover biological relatedness. It also promotes the idea of nonexclusive parenthood
because it is not based on winner-take-allconcepts and can preserve multiple family units.
If accepted on a widespreadbasis, it must be noted that this
doctrine certainly would not eliminate all problems in custody
disputes between biological and nonbiological parents. Even if
accepted theoreticallyor ideologically, the idea of multiple parents would not be without problems in implementation.For instance, among divorcingcouples with joint legal or joint physical
custody, it can be difficult for the adultsto "share" childrenand
cooperate with one another with respect to such things as visitation times, vacation planning, holiday get-togethers,disciplinary styles, and so forth. If cooperation is difficult for two biological parents,it seems reasonableto assume that child sharing
would be even more contentious when some of the adults involved are not biological parents.
Although these sorts of problems are certainly important,
they are not so severe as to completely preclude the adoption
and implementationof the family relations doctrine. The problems associated with joint custody among divorcing couples are
widely recognized; yet, the practice of awardingjoint custody
still predominates (Hess, 1986). Moreover, although research
finds that exposure to ongoing conflict between divorcedparents
is more detrimentalto children than no contact with the noncustodial parent (see Opie, 1993), much research suggests that
maintainingrelationshipswith both parentsis a crucial factor in
children'sadjustmentto divorce (Amato & Gilbreth,1999; Opie;
Simons, Whitbeck, Beaman, & Conger, 1994; Wall & Amadio,
1994). We should expect that in the context of biological versus
nonbiological disputes, maintainingrelationshipswith both sets
of parentsgenerally would be beneficial to the child, despite the
potential problems associated with multiple families.
Implementing the family relations standardmeans getting
family lawyers and family court judges to utilize this doctrine.
The case analysis here can serve as the catalyst in this process.
Lawyers and judges can use the logic outlined in this article to
craft an argumentin court that would introduce the family relations doctrine. From there, reliance on precedent,debate over
the new doctrine, and continued adaptationof the doctrine will
help to spur its adoption in other courts and states.
References
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