In Re Sanders and the Resurrection of Stanley v. Illinois

California Law Review Circuit (2014 Forthcoming)

9 Pages Posted: 12 Aug 2014 Last revised: 11 Nov 2014

See all articles by Josh Gupta-Kagan

Josh Gupta-Kagan

University of South Carolina School of Law

Date Written: August 11, 2014


In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care. Somewhat oddly, Stanley went on to be cited as a leading case regarding the rights of unwed fathers to object to private adoptions favored by mothers -- an issue not present in Stanley. Odder still, most states routinely violated Stanley in child welfare cases -- the context in which the Stanley rule arose. Most states apply the "one parent doctrine," which holds that finding one parent unfit justifies taking the child into foster care over the other parent's objections -- even when that parent (usually the father) has seized his opportunity interest in the child and is thus entitled to the due process protections ordered in Stanley. Cases around the country adopting this doctrine ignored Stanley -- many did not cite it at all and others noted it but offered no substantive discussion.

This article argues that this trend may be changing. The Michigan Supreme Court held earlier this year that the one parent doctrine is unconstitutional, explaining at length, and with heavy reliance on Stanley, that the state must prove its case against parents before taking their children. This decision -- In re Sanders -- hopefully portends a welcome resurrection of Stanley v. Illinois in the foster care context. Such a resurrection would impose a core due process protection in an important body of cases. It would reinforce the policy -- also articulated in Stanley -- that due process protections are essential to determine whether a child's interest in protection of maltreatment or remaining with her family trump. And it would attack the gender stereotypes and other unhelpful heuristics that too often lead to poor decisions in child welfare cases.

Keywords: Child Welfare, Family Law, Constitutional Law, Due Process

Suggested Citation

Gupta-Kagan, Josh, In Re Sanders and the Resurrection of Stanley v. Illinois (August 11, 2014). California Law Review Circuit (2014 Forthcoming), Available at SSRN:

Josh Gupta-Kagan (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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