The Strange Life of Stanley v. Illinois: A Case Study in Parent Representation and Law Reform

N.Y.U. Review of L. & Soc. Change (Forthcoming)

62 Pages Posted: 8 Dec 2016 Last revised: 24 May 2017

See all articles by Josh Gupta-Kagan

Josh Gupta-Kagan

University of South Carolina School of Law

Date Written: December 6, 2016


This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois — the foundational Supreme Court case which established parental fitness as the constitutional lynchpin of any child protection case — including its litigation, how family courts applied it (or not) in the years following the Supreme Court’s decision, and a recent resurgence of Stanley’s fitness focus. Stanley’s trial court litigation illustrates the importance of vigorous parental representation, and an effort by the family court to prevent Stanley from obtaining an attorney.

Despite Stanley’s requirement that states prove parents unfit before taking custody of a child several doctrines permitted states to do precisely that in the 1970s and 1980s. Those doctrines deem a fitness finding regarding one parent sufficient to deny the other parent custody even without a hearing on their fitness. These doctrines were developed without wrestling with Stanley, and are deeply gendered, especially because most non-resident and non-offending parents are fathers. How the law should address such parents is complicated, but Stanley ought to be the starting point. In contrast to doctrines ignoring Stanley in some child protection cases, the case had significant influence in private adoption law. One factor explaining this contrast is adoption agencies were well-represented, and had power to insist on legal reforms following Stanley. Finally, this Article explores the legal, policy, and academic contexts in which Stanley was ignored and in which it now enjoys a resurgence. The Supreme Court decided Stanley at a time when academics did not study the role of unwed fathers, when policy-makers sought to reform the child protection system largely without reliance on constitutional law, and when parents widely lacked lawyers to advocate for them in family court. All three of those contextual elements have changed in intervening years, and those changes contribute to several recent important cases featuring a resurgence of Stanley.

Keywords: Child Protection Law, Stanley v. Illinois, Constitutional Law, Family Law

JEL Classification: K36, K39

Suggested Citation

Gupta-Kagan, Josh, The Strange Life of Stanley v. Illinois: A Case Study in Parent Representation and Law Reform (December 6, 2016). N.Y.U. Review of L. & Soc. Change (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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