For some time now, legal scholars have been writing about the panoply of diverse family forms such as single parents, post-divorce, blended, and LGTBQ+ families. We use these “modern” arrangements as a gateway into discussing how families actually work, how far the law is from reflecting that reality, and how social changes in family formation challenge norms about gender, sexuality, and the nuclear family. Only on a few occasions, however, do we find in the legal literature an article that empirically tests our assumptions about how the law reflects family reality and how effectively a legal institution regulates such reality. Courtney Joslin and Douglas NeJaime’s How Parenthood Functions does precisely that.
In their forthcoming article, the authors survey 669 electronically reported judicial decisions (almost all of which are appellate decisions) from every United States jurisdiction with a functional parent doctrine. They define functional parenthood as legal institutions that grant parental rights to a person based on their conduct of having functioned as a parent (e.g., de facto parentage, in loco parentis, psychological parenthood, or presumed parentage based on holding out a child as one’s own). Their study includes cases decided under common law, equitable, and statutory grounds that treat functional parents as legal parents or grant them partial parental rights. The authors exclude from their data set cases arising under third-party custody and visitation statutes that do not require proof of a parent-child relationship or parenting behavior; doctrines that turn on a person’s status in relation to the legal parent to grant rights (e.g., marital presumptions or right to visitation based on the status as a grandparent or stepparent); and assisted reproduction statutes that recognize people as parents (both married and unmarried) based on their intent to be parents.
The authors coded these data using several categories. In addition to the expected classifications such as jurisdiction, posture, party bringing claim, publication, type of doctrine applied, legal authority, and judicial determination, the authors also coded for the identity of the alleged functional parent (e.g., same-sex unmarried partner, grandparent, different-sex spouse, foster parent), the role of the alleged functional parent and of the legal parent (e.g., primary caregiver, never lived with the child, involved but not the primary caregiver); whether there were domestic violence and/or child abuse and neglect allegations and the identity of the individual(s) against whom allegations were made, child welfare involvement, whether child entered the family through assisted reproduction, adoption, or sexual procreation; and parental death. In this piece, they focus on how these coded categories show who functional parents are and what they do, and how these cases arise and are decided by the courts.
Based on their data, Joslin and NeJaime dispel various descriptive and predictive assumptions made by courts and scholars regarding functional parents. Specifically, the authors show how scholars’ fascination with paradigmatic “modern families” might lead to erroneous beliefs that functional parent doctrines are obsolete, intrusive of the parent-child relationship, and the basis for meritless and abusive claims, and to unwarranted skepticism about whether courts can effectively decide such cases.
First, Joslin and NeJaime find that nonbiological parents in same-sex relationships (overwhelmingly nonmarital), different-sex stepparents, and former cohabitants in different-sex unmarried couples constitute a small group of the alleged functional parents, 17% each. Rather, the largest group of claimants are relatives claiming to be a functional parent (36%). Consequently, instead of finding post-dissolution custody disputes to predominate, the authors find a wide spread of other situations giving rise to functional parent claims (e.g., cases involving parental death and child welfare intervention). These data, along with the finding that only 11% of the children in the cases surveyed were conceived through assisted reproductive technologies (ART), demonstrate how what has been argued and/or overstated in the functional parenting literature as the paradigmatic functional parent claimants (i.e., partners in same-sex couples and different-sex cohabiting couples with a non-biological parent) are not the majority of the claimants in functional parenting cases.
This discussion inevitably invites a reflection on how family law scholars discussing non-traditional family arrangements revert to the affluent marital family model even if it takes new forms from a different sex white couple (e.g., a same-sex married couple using ART). Joslin and NeJaime’s work shows that functional parenting is a mechanism often used by low-income and middle-class families to devise parental care arrangements amidst substance and health issues, economic insecurity, and instability. However, much of the literature ignores the largest group of functional parents and focuses instead on same-sex couples using ART.
Their findings not only contradict claims in the parenting literature about who functional parents are but also question arguments about functional parent doctrines being obsolete because of marriage equality as it assumes that the majority of these same-sex couples are married. However, the majority of functional parents in nonmarital same-sex couples will have no protection if it were not for the functional parenting doctrines. Joslin and NeJaime’s findings show how functional parent doctrines are still important even in the limited set of post-dissolution cases as the majority of people in these cases, contrary to the assumptions in the literature, are unmarried and might not have other recourse because of their cohabiting status.
This discussion highlights also the paradox of marriage equality jeopardizing some advances for nonmarital couples. As, I and others have argued, marriage equality, even if a great civil rights victory, is a double-edged sword as it has served to reify marriage as the paradigmatic family structure, putting in peril non-traditional family arrangements.
Joslin and NeJaime’s findings contradict as well one of the major critiques of the functional parent doctrines: the doctrines’ intrusiveness in the parent-child relationship. This argument is predicated on the assumption that the functional parent claim generally arises as part of a dissolution action in which the alleged functional parent seeks custody or visitation. As such, the court determination inevitably infringes on the right of the parent to raise a child and implies a state interference with the otherwise untouched parent-child relationship.
However, as Joslin and NeJaime’s finding show the majority of cases do not arise in post-dissolution disputes. Moreover, in the majority of the cases, there is no concern about intruding on the parent-child relationship. In 83% of the cases the alleged functional parent had been a primary caregiver of the child and in 42% the alleged functional parent was a co-primary caregiver with the legal parent; showing that the traditional parent-child relationship has already been disrupted/transformed.
Ironically, arguing for the abolition of these doctrines could lead to these families being and/or continuing to be policed and intruded on by the State. As Joslin and NeJaime’s analysis shows, functional parenting doctrines insulate these families from being policed as the established parent-child relationship is preserved and protected from state intervention by, for example, preventing the child from entering the foster care or the child welfare system. Moreover, as discussed, this critique centers around affluent marital families while ignoring the impact on lower-income ones.
Their data also rebut the idea that functional parenting claims could be used to put children in danger or to use children as pawns in post-dissolution disputes. Interestingly, and contradicting these concerns, the authors found that in 62% of the cases involving allegations of domestic violence or child abuse/neglect, the allegations were made against the legal parent and not against the alleged functional parent.
Joslin and NeJaime’s work shows that rather than disrupting children’s lives, functional parent doctrines typically secure children’s relationships with the individuals who are in fact parenting them. In addition, the data reaffirms that the majority of claimants in functional parent cases are people who wish to serve as a parent, rather than people evading being recognized as such. These findings, accordingly, support the use of functional parent doctrines on child-centered grounds.
Furthermore, the authors’ analysis makes clear that courts are not overextending the use of these doctrines. Based on the authors’ discussion, one might even wonder whether the rate of decisions denying parental rights is affected by the courts’ use of the descriptive and predictive assumptions that Joslin and NeJaime rebut in their paper. For example, the authors found that in cases in which the alleged functional parent was the child’s primary caregiver and no legal parent was even consistently caring for the child, the court rejected the recognition of the functional parent 30% of the time. That means that even in cases where no legal parent was exercising their responsibilities but a functional parent was, the court decided not to grant rights to the person effectively taking care of the child. This and other data discussed in the paper suggest that courts tend to err on the side of non-recognition rather than on recognition.
These are a few of the many fascinating questions that the article raises. The authors also invite every one of us to think more about the parameters we use to determine functional parenting. Personally, the article has invited me to not only challenge the idea of the family from the perspective of marriage but also from the perspective of parentage.
I look forward to Joslin and NeJaime unveiling further insights in future work based on this data. I also await anxiously the publication of their coded data set to see more scholarship that challenges our notions of family arrangements and brings Family Law closer to a functional reality.
