Balancing "Parents Are" and "Parents Do" in the Supreme Court's Constitutionalized Family Law: Some Implications for the ALI Proposals on De Facto Parenthood

Balancing "Parents Are" and "Parents Do" in the Supreme Court's Constitutionalized Family Law: Some Implications for the ALI Proposals on De Facto Parenthood* I. INTRODUCTION Chapter 2 of the American Law Institute's ("ALI") proposed Principles of the Law ofFamily Dissolution1 proposes to widen considerably two relatively new concepts in family law: "de facto parenthood"2 and "parenthood by estoppel."3 Of course, persons other than biological or adoptive parents have been acting in parental roles toward children for ages; what is new here as in other parts of the ALI Principles4 is the taking of historically nonlegal relationships into the domain of law. This proposal would recognize and regularize the notion that adults unrelated to a child may establish the legal equivalent of parenthood over that child provided (1) that they have acted in a parental role toward that child and (2) that such conduct was authorized by one of the natural parents. The ALI proposal forces us to think about the nature and origins of parental status. Does parental status begin and end with the biological link, or, on the contrary, is it the case that "parents are as parents do"? From my perspective as a constitutionalist rather than a family law expert, I would like to examine how the cases in the field of constitutionalized family law balance the sometimes competing claims of nature and nurture in settling contested claims of parental rights, and what conclusions can be drawn from that examination in regard to the ALI proposed expansion of the concept of de facto parenthood. Section II of this essay will walk us through the case law on parental rights that developed in the context of the fathers' rights cases of the 1970s and 1980s. Section III attempts to synthesize this case law so as to show its relevance to the question of de facto parenthood. Section IV applies this synthesis to the de facto parenthood concept, and Section V offers some concluding reflections, namely, (1) that expansive notions of de facto parenthood are not required by constitutional case law, which continues to respect both biological parenthood and customary usage, and (2) that such notions risk bringing about what I call parent inflation, devaluing an already too-- scarce resource. II. CONSTITUTIONAL STANDARDS ESTABLISHED IN THE CONTEXT OF FATHERS' RIGHTS When the Supreme Court first held that Fourteenth Amendment Due Process entitled an unwed biological father to a hearing on his parental fitness before custody of his children could be assigned elsewhere following the death of the children's mother,5 Chief Justice Burger predicted in dissent that the case would signal "a novel concept of the natural law" and that this project would "have strange boundaries as yet undiscernible."6 Stanley did indeed turn out to be the start of a strange Rhine Journey, but a quarter of a century later, especially in light of the Court's 1989 holding in Michael H. v. Gerald D.7 the river carrying us along has not yet overflowed its banks. The Court has affirmed the importance of the biological aspect of parenthood, sometimes, as in Stanley, giving it considerable importance. Thus, we can conclude that "parents are," that is, parenthood is to some extent an identity arising out of biological facts. But at the same time, the Court has consistently affirmed that parenthood is a social role, such that those who play the role have enhanced status before the law if and when their parenthood is drawn into question. Thus, even in Stanley, the majority of the Court pointed to Mr. Stanley's frequent (though not uninterrupted) efforts to act as father to his children,8 while the dissenters disputed the evidence for this.9 Both agreed, however, that the issue was relevant to Mr. Stanley's claim.10 Thus, we can conclude that "parents do," that is, parenthood is to some extent a role defined by legal, social, and traditional expectations, and those who play the role get the status-or may get it. …