Between Function and Form: Towards a Differentiated Model of Functional Parenthood

Abstract:     
Over the past couple of decades, courts have been tentatively willing to weaken the traditional exclusivity of formal parental status and to recognize rights and obligations stemming from functional parenthood relationships that develop without the traditional formal markers of parenthood – biology or adoption. Step-parents, foster-parents, grandparents, extended family members, same-sex co-parents, are among the care providers whose legal status has been legally recognized in relation to children. Despite the very different ways formal parental status and functional parenthood develop and are recognized, once parenthood status is accorded, courts and scholars tend to treat all such parents alike. Or, when formal and functional parenthood are differentiated, little or no justification is given. In this Article, we argue it is a mistake to attempt to fit functional parents into the same legal mold as formal parents. Rather, we offer an analysis of the distinct and complementary roles of formal and functional parenthood. Indeed, it is important to recognize the differences in these relationships: the diversity and flexibility of functional relationships, the different points in time in a child's life at which formal and functional relationships begin and end, and the different degrees of privacy, stability, and predictability in formal and functional relationships. We outline various legal implications of recognizing these differences, bifurcating the system of parenting rights based on the differences between form and function. In this manner, we argue, the advantages of recognizing functional parenthood can be best achieved without undermining the advantages that traditional formal parenthood offers.

Number of Pages in PDF File: 65

Accepted Paper Series