Trusting Mothers: A Critique of the American Law Institute's Treatment of De Facto Parents
88 Pages Posted: 9 Aug 2017
Date Written: January 1, 2010
Using the tragic case of Haleigh Poutre, this article argues that in cases in which a mother lives with a heterosexual man who is not her child’s legal father, the American Law Institute’s thinned-out test for parenthood overrides the judgment of mothers without sufficient consideration for the risks to children. It first demonstrates that the existence of a loving relationship, so important to denying the abusive father’s claim, is precisely the kind of qualitative test that the drafters of the Principles expressly rejected in favor of a more easily administrable test based on chores and time. It then marshals significant social science evidence showing that naïve assumptions about human goodness undergird the drafters’ recommendations. This evidence shows that the performance of “caretaking” chores, central to the ALI’s test, will do little to discern how protective live-in partners have been, or will be. Moreover, countless studies document that unrelated males are significantly over-represented among the population of child sexual abusers, as well as those who commit child physical abuse. While it is certainly true that not every former live-in male partner poses a risk to children, the ALI’s formulaic proposal to grant parental rights to former live-in partners leaves judges little discretion to separate the good risks from the bad. This Article then surveys how courts in the United States have received the ALI’s recommendations about de facto parents. While courts have looked to the Principles for guidance on this topic more than any other, they have rejected the ALI’s approach twice as often as they have accepted it. Even courts that have embraced the idea of parental rights for live-in partners have beefed up the ALI’s bare-bones test for de facto parenthood precisely to safeguard a child’s welfare and the legal parent’s ability to have the last word on who has access to her children. These courts overwhelmingly have refused to grant full parental rights on such narrow grounds. Ultimately, this Article concludes that when society takes love and parental judgments into account and not mere time-in-residence doing chores for a child, we can be more confident that the upside of conferring parental rights on male live-in partners will be significant for children, and that the inherent risks of such an approach will be greatly reduced.
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