Federal Constitutional Childcare Parents

90 St. John's Law Review 965 (2016)

38 Pages Posted: 30 Mar 2016 Last revised: 18 Jul 2017

Jeffrey A. Parness

Northern Illinois University - College of Law

Date Written: March 30, 2016


The U.S. Supreme Court has long recognized federal constitutional childcare rights in parents that may not be easily diminished or eliminated by government. Yet it has allowed these childcare rightsholders to be chiefly defined by state laws. The relevant state laws vary widely, dependent upon such factors as biological ties, functional parenthood, contracts, and the avenues to conception.

Deference to state lawmaking here is unique. No other federal constitutional rightsholders are so significantly defined by state statutes and precedents. This deference has resulted in significant interstate variations in de facto parent, equitable adoption, presumed parent and surrogacy matters, as well as in significant problems that can only be remedied by further U.S. Supreme Court pronouncements. The high court should soon address important childcare parent issues, including paternity opportunity and gestational carrier interests during assisted reproduction; childcare interests for functional parents; the limits on parental and prospective parent waivers of federal constitutional childcare rights; and, clearer guidelines on the possibility of nonparental state childcare laws, as with those benefiting grandparents and stepparents.

Keywords: childcare, child visitation, child custody, allocation of parental responsibility, Troxel, Lehr, Michael H., privacy, parent, parentage, child care custody and control, Nguyen, Yazell, Hisquierdo, Callender, Ankenbrandt, Chevalier, de facto or equitable parent, presumed parent, functional parent

Suggested Citation

Parness, Jeffrey A., Federal Constitutional Childcare Parents (March 30, 2016). 90 St. John's Law Review 965 (2016). Available at SSRN: https://ssrn.com/abstract=2756545

Jeffrey A. Parness (Contact Author)

Northern Illinois University - College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

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