How Parenthood Functions

Columbia Law Review (forthcoming 2023)

Columbia Law Review, Forthcoming

128 Pages Posted: 23 Sep 2022 Last revised: 2 Oct 2022

See all articles by Douglas NeJaime

Douglas NeJaime

Yale University - Law School

Courtney G. Joslin

University of California, Davis - School of Law

Date Written: September 2, 2022

Abstract

Today, approximately two-thirds of states have a functional parent doctrine. Under these doctrines, a court can extend parental rights based on the conduct of forming a parental relationship with a child. Different jurisdictions use different names—including de facto parentage, in loco parentis, psychological parenthood, or presumed parentage based on “holding out” the child as one’s own—and the doctrines arise out of different sources of authority—common law, equitable, and statutory. In recent years, these functional parent doctrines have garnered significant attention, becoming a centerpiece of national and state law reform efforts. For all that is written about functional parent doctrines, little is known about how they work in practice. As a result, commentary tends to make assumptions about how the doctrines operate without a solid empirical basis.

This Article documents how functional parent doctrines operate, examining when, how, and to whom courts apply them. It does so by providing an empirical account of functional parent case law. We collected and coded every electronically available functional parent decision issued between 1980 and 2021 from every jurisdiction that has a functional parent doctrine. Our empirical analysis of these 669 cases provides a more thorough, detailed, and accurate account than extant treatments. We find that, among cases in our data set, relatives constitute the largest group of functional parents. We find that in the overwhelming majority of cases, the functional parent has been the child’s primary caregiver. We find that courts routinely apply functional parent doctrines to protect children’s relationships with the person who is parenting them.

Our study reveals that common empirical assumptions about when and how functional doctrines operate in fact are not significantly supported by the data. These empirical assumptions, which undergird normative objections to the doctrines, fail to reflect the contexts in which functional parent claims arise, the individuals who assert such claims, and the roles that the parties played in the children’s lives. Instead, our findings lend support to normative arguments in favor of functional parent doctrines. We find that courts commonly apply the doctrines in ways that make children’s lives more stable and secure by protecting their relationships with their primary caregivers, preserving their home placements, and shielding their families from further state intervention.

Keywords: functional parent, de facto parent, parentage, LGBTQ, family law, parent-child, best interests, in loco parentis, "holding out", child welfare, multi-parent

Suggested Citation

NeJaime, Douglas and Joslin, Courtney G., How Parenthood Functions (September 2, 2022). Columbia Law Review (forthcoming 2023), Columbia Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4208364

Douglas NeJaime (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

Courtney G. Joslin

University of California, Davis - School of Law ( email )

400 Mrak Hall Drive
Davis, CA CA 95616
United States
(530) 752-8325 (Phone)

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