32 Pages Posted: 18 May 2002
Date Written: May 2002
There is growing concern among courts, commentators and the public that the law overprotects parental rights at the cost of children's relationships with "non-traditional" caregivers. This article suggests that the law should be structured to allow recognition of the most important among these non-traditional relationships, but that such recognition need not, and should not, undercut parents' constitutionally protected authority to control their children's upbringing. The article criticizes the ALI's recently adopted Family Dissolution Principles and the Supreme Court's discussion in Troxel for their failure adequately to protect this parental authority, arguing that such a weakening of parental rights will disserve children's interests.
The article distinguishes between parental rights of identity and authority, and suggests that the state should be afforded considerably greater power to resolve identity disputes among competing parental claimants than to intervene in parental decision making, where parental figures are clearly identified. The article demonstrates that this approach is both consistent with children's interests and with the Supreme Court's parental rights doctrine prior to Troxel. Applying this approach to the claims of non-traditional caregivers would allow a state to identify non-traditional caregivers as parents, and where it did so, would require the state to afford these caregivers' child-rearing decisions the same strong protection afforded the decisions of more traditional parental figures. It would also prevent the state from offering these caregivers some more limited right of contact or control, should it choose not to recognize them as parents.
Keywords: children, caregivers, family dissolution principles, Troxel
Suggested Citation: Suggested Citation
Buss, Emily, Parental Rights (May 2002). Virginia Law Review, Vol. 88 (U of Chicago, Public Law Research Paper Series). Available at SSRN: https://ssrn.com/abstract=312179 or http://dx.doi.org/10.2139/ssrn.312179