Limiting the Prerogatives of Legal Parents: Judicial Skepticism of the American Law Institute's Treatment of De Facto Parents
25 Journal of the American Academy of Matrimonial Lawyers 477 (2013)
56 Pages Posted: 27 Sep 2017
Date Written: 2013
This article argues that the ALI’s thinned-out test for parenthood overrides the judgments of mothers without sufficient consideration for the risks to children. It demonstrates that the existence of a loving relationship 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 naive assumptions about human goodness undergird the drafters’ recommendations. This evidence shows that the performance of “caretaking” chores, central to the ALI test, will do little to discern how protective live-in partners have been or will be, at least when these partners are heterosexual men. It 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 reject the ALI approach twice as often as they accept 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 the child’s welfare and the legal parent’s ability to have the last word on who has access to her children. 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 for children of conferring parental rights on live-in partners will be significant and that the inherent risks of such an approach will be greatly reduced.
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