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The Tie that Binds: The Constitutional Right of Children to Maintain Relationships with Parent-Like Individuals

54 Pages Posted: 1 Apr 2009  

Gilbert A. Holmes

University of La Verne - College of Law

Date Written: 1994


Children are the most important foundation of every society. As the sole source of tomorrow's leaders and participants, children are the link between the past, the present, and the future. They are the tools by which each culture perpetuates its way of life. Children preserve a society's legacy -- its heritage, culture, history, and folklore. Because children play this vital role, their transition to adulthood is an essential component of a society's preservation. To ensure that its culture and values will endure from generation to generation, a society should adopt policies that positively affect the raising, nurturing, and education of children.

In the past four years, courts have confronted an increasing number of disputes involving children and their familial relationships that raise perplexing legal, social, and psychological questions. For example, in 1989, the United States Supreme Court decided that the biological father of a child born into an adulterous relationship with a married woman did not have a right to maintain a relationship with the child. In 1991, the New York Court of Appeals held that a member of a dissolved same-sex family lacked standing to seek visitation with a child that her partner conceived via artificial insemination during the relationship. In the same year, the Wisconsin Supreme Court refused to enforce a coparenting agreement executed by the members of a dissolved same-sex family and denied standing to one member of the family to pursue visitation of the child despite a statute authorizing standing. In 1992, a Florida court decided that a minor could commence a proceeding to terminate his birth mother's parental rights so that his foster parents could legally adopt him. In 1993, the Michigan Supreme Court ruled that Michigan did not have jurisdiction to issue a custody order contrary to an Iowa order issued two years earlier awarding custody of a child in a preadoptive placement to the birth father, who never consented to the adoption.

All of these cases involved delicate, complex, and troubling questions of social policy, legal doctrine, and psychological data on child-rearing, and all of them scrutinized the significance of the child's biological, actual, and perceived relationships. Their respective resolutions have stirred public debate about the definition of "family" and the effect of current public policy in family-relationship-dispute resolution.

This Article uses recent cases to illustrate the inadequacy of the adult-centered approach to reconciling the rights of children with those of adults. It argues that the law should accord children an independent liberty interest in their relationships with both "legal parents" and "nonlegal parents" irrespective of biological ties. The Article analyzes (a) the development of children's constitutional rights; (b) recent statutory changes expanding the categories of individuals who have standing to pursue visitation; (c) empirical studies recognizing a child's need to maintain relationships with parent-like figures; and (d) the impact that a child-centered approach would have on the parents' constitutional right to control and care for their children. This Article advocates the recognition of children's liberty interest in familial relationships and suggests a model for conducting a child-centered analysis. Finally, it proposes a test for identifying nonlegal parents with whom children could maintain protected relationships.

Keywords: Children, relationships, social policy, family, constitutional rights, visitation, parents

JEL Classification: K19, K39, J13

Suggested Citation

Holmes, Gilbert A., The Tie that Binds: The Constitutional Right of Children to Maintain Relationships with Parent-Like Individuals (1994). Maryland Law Review, Vol. 53, No. 2, 1994. Available at SSRN:

Gilbert A. Holmes (Contact Author)

University of La Verne - College of Law ( email )

320 East D Street
Ontario, 91764

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