The role of extended family in childcare has always been significant. As Stephanie Tang points out in her excellent article, Best Interests of the Child and the Expanding Family, one study (in 2021) found that nearly a quarter of Americans live in multigenerational households, while another study (from 2017) reported that roughly one third of households with children depend on extended family for childcare. (Pp. 266-67.)
The attitude of American family law to extended family could be described variously as ambivalent, inconsistent, or simply confused. At the Supreme Court, we have, first, Moore v. City of East Cleveland,1 where the Court held that East Cleveland’s single-family zoning ordinance could not define “family” in such a way that a grandmother could not live with her two grandchildren (who were cousins to one another). The Court commented: “Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.”2 However, despite this indication that extended family might be entitled to constitutional protection, when the same Court was faced with a grant of visitation to grandparents over the objection of a parent in Troxel v. Granville,3 the Court, in affirming parental rights, did not treat grandparents as having any special standing. Instead, the grandparents were treated as simply another example of a non-parent, holding that, in contests regarding custody or visitation between a parent and a non-parent (even if that non-parent is a member of the extended family), a strong presumption must be given in favor of the parent (at least if the parent is fit).4
In Tang’s article, the focus is less on situations where extended family members are in disputes with legal parents regarding custody or visitation, and more on considering extended-family care as a factor in disputes about custody and relocation between two fit parents. And here, once again, the courts seem to give mixed signals about extended family. On the one hand, courts will sometimes see the availability of extended family caregivers as a plus in considering a custodial parent’s motion to relocate (that it is good that the child will have contact with extended family and that some of the child’s care can come from relatives), but sometimes the courts will consider such care by extended family in a negative way in the initial custody contest (favoring the parents who can take care of the children themselves over those who may have depend on extended family for significant portions of the child-care). (Pp. 279-81.)
The other and overlapping theme of Tang’s article is a critique of the Best Interests of the Child standard for child custody determinations. Standard criticisms of the Best Interest standard5 include that it is unpredictable and gives judges too much discretion; it encourages litigation; and the standard effectively encourages parents to produce (truthful or otherwise) harmful evidence about the other parent’s fitness, which, in turn, makes it harder for the parents to cooperate afterwards in raising their children together. The Best Interests standard may also reflect a misplaced confidence in the ability of psychologists and other professionals to determine which arrangements will in fact benefit children the most.
Tang’s own discussion of the use of the Best Interests standard in custody disputes is supported by a 51-jurisdiction (50 states plus the District of Columbia) survey of custody statutes. The article reports that every jurisdiction adopts the Best Interests standard, but the statutes vary considerably regarding whether they list factors for court consideration and whether the courts are required to create findings of fact regarding the statutory factors. While Tang repeats a number of the standard criticisms mentioned above (e.g., P. 271), her own recommendations focus on a trio of modest changes rather than any drastic overhaul. Tang argues (Pp. 304-6) that custody statutes should list factors a court must consider, include as one of those factors the availability of care by extended family6; and require courts to discuss which factors led to the court’s ultimate custody decision.
I agree with Tang regarding these proposed reforms: that, if enacted, they would make a noticeable change, focusing courts on extended-family care and making it more likely that the courts will treat such care as an important and positive factor.
- 431 U.S. 494 (1977).
- Id. at 504 (footnote omitted).
- 530 U.S. 57 (2000).
- Id. at 65-71. It is Justice Scalia, in dissent, who speculates that “grandparents [and] extended family … may have some claim against the wishes of the parents.” Id. at 93 (Scalia, J., dissenting).
- See, e.g., Elizabeth S. Scott & Robert E. Emery, Gender Politics and Child Custody: The Puzzling Persistence of the Best-Interests Standard, 77 L. & Contemp. Probs. 69 (2014).
- Tang reports that 11 states currently include that factor, or something close to it (P. 275).
