A mother sits at a Child Protective Services office, surrounded by the scents of coffee and nicotine gum. Notices about food aid, housing forms, and a chart of deadlines blur as she struggles to focus. She is unemployed—not addicted or pathologically unstable—simply unable to find stability without family support and public aid. Her fraught relationship with her mother-in-law, who has provided childcare and now serves as kin care under Kentucky’s child protection system, has shifted. The caseworker explains that the grandmother may be recognized as a de facto parent, which would allow the state to close the neglect case, cease reunification services for the mother and foster care training and resources for the grandmother.
This grandmother’s bureaucratic pivot from helpful kin to potential legal parent provides the starting point for Rama Hyeweon Kim’s analysis in Parents, Kin, and the State: Family and Households Between Functional Parenthood and Child Protection. Kim begins by noticing that much of the literature on LGBTQ families and assisted reproductive technologies advocates for the recognition of functional parenthood as a normative good, without much engagement with the potential downsides of such a development. (P. 5.)1 Her article provides precisely such an in-depth engagement. Kim suggests that the costs of this model are real and uneven. Specifically, functional parenthood can burden parent–child relationships in poor and racialized communities, often plagued by higher-than-average rates of parental incarceration and substance abuse, which she calls “peripheral families” (P. 11), by reshaping power within the family under state oversight. Thus, her core claim is not that functional recognition is always wrong, but rather that its use in child-protection contexts brings distributional consequences that much of the reform literature has not fully considered, “including potentially severe and negative impacts on parent–child relationships.” (P. 1.)
Building on this critique, Kim maps the intersection of functional parenthood with kinship care under child protective services in subsequent sections. Section I outlines the doctrinal field of kinship care, highlighting two domains that are often treated separately: private custody and parentage law on the one hand, and public child protection on the other. While the map is descriptive, it also illustrates the transmission of concepts. Here, functional parenthood—initially designed for private disputes—now crosses the boundary and shapes administrative child-welfare practice. Recognizing this crossing reframes the question: it is not whether functional recognition is good in the abstract, but how it operates when the state is already involved and kin care is part of an ongoing public case.
With this theoretical foundation, Part II shifts focus to Kentucky and provides the article’s empirical and doctrinal core. Kim reviewed 79 appellate cases from 2019 and 2023 where functional custody law was applied and conducted thirteen interviews with attorneys, judges, child protection agents, and policy advocates. (P. 12.) Kentucky’s de facto custodian statute gives a kin caregiver standing equal to a parent once a court finds clear and convincing evidence that the caregiver has been the child’s primary provider of care and financial support for a set period. (P. 34.) On paper, this pathway stabilizes existing placements. In practice, Kim shows, it often arises within or alongside neglect proceedings. CPS increasingly relies on kin as first-line placements through voluntary safety plans or informal diversions from formal foster care. This reliance, together with administrative pressure to achieve permanency and close cases, creates incentives to convert provisional kin roles into legal custody through a private-law route. The file closes, the child stays with kin, and the state withdraws, without the full support, oversight, or reunification services that formal foster care would have provided.
The case study documents this dynamic in appellate decisions and practice accounts, showing the two-way traffic between private and public systems. Voluntary kin placements can lead to private petitions for de facto custodian status, while private suits reshape or interrupt ongoing CPS cases. The agency’s search for kin resources also shifts family bargaining. Parents and kin negotiate under the threat of possible state action, while lawyers and judges frame stability in terms of functional caregiving that can be quickly formalized. The result is not a clear victory for anyone. Children may gain continuity; kin may take on long-term obligations with limited support; parents may see their legal position weakened without the protections and services that come with formal dependency cases.
After tracing the mechanics of these processes, Kim turns to the normative terrain in Part III. Here, she develops a complex account that resists easy resolutions. Functional recognition in child protection, she suggests, can take four distinct paths. It can deliver benefits by stabilizing a child’s home with a caregiver already performing the role. Second, it can impede reunification by formalizing custody before a parent has had a fair chance at services. It can amplify harm by legalizing intra-kin conflict and rendering temporary measures difficult to reverse once formalized as parentage. Finally, it can also mitigate harm by checking agency placements that might otherwise occur without adequate scrutiny. Which path ultimately emerges, Kim emphasizes, depends less on doctrinal language than on local practice, fiscal pressures, and agency incentives. Her point, then, is not to condemn functional parenthood, but to issue a warning about the importance of design and context.
Kim’s analysis builds on and extends two classic frameworks that have shaped the study of family law and poverty. If Jacobus tenBroek revealed the duality of family law—protective for the middle class, punitive for the poor—and Tonya Brito charted the “welfarization” of family law, Kim asks us to see the reverse: a familialization of welfare policy, where the state retreats by delegating its duties to kin networks, placing family responsibility where public support should be.2 This insight connects doctrinal observation to institutional critique: what appears as empowerment at the micro level may signal withdrawal at the macro level.
From this normative analysis, Kim articulates a concrete reform horizon, even as the article remains primarily descriptive. She suggests narrowing the circumstances in which functional claims can be used in neglect cases, particularly where the parent has not been found unfit and has not received adequate services. To address risks, she proposes tying functional recognition used to close child-protection files to obligations for reunification supports, kinship subsidies, and meaningful judicial oversight. She further urges the creation of exit ramps—such as time-limited orders and periodic review—to prevent administrative closure from resulting in long-term parental loss and to ensure that improvements in parental capacity are taken seriously.
In this important contribution, Kim reminds us that the future of family justice depends not only on recognizing care, but on deciding whose care counts and on what terms.
- Kim provides an extensive footnote citing Douglas NeJaime, The Constitution of Parenthood, 72 Stan. L. Rev. 261, 272-73 (2020); Jessica Feinberg, Whither the Functional Parent? Revisiting Equitable Parenthood Doctrines in Light of Same-Sex Parents’ Increased Access to Obtaining Formal Legal Parent Status, 83 Brook. L. Rev. 55 (2017); Clare Huntington & Elizabeth S. Scott, Conceptualizing Legal Childhood in the Twenty-First Century, 118 Mich. L. Rev. 1371, 1425-26 (2020) among many others.
- Jacobus tenBroek, California’s Dual System of Family Law: Its Origin, Development and Present Status: Part I, 16 Stan. L. Rev. 257 (1964); Tonya L. Brito, The Welfarization of Family Law, 48 U. Kan. L. Rev. 229 (2000).
