The New "Extended Family"-"De Facto" Parenthood and Standing Under Chapter 2

The New "Extended Family""De Facto" Parenthood and Standing Under Chapter 2* Can parental rights-and, by implication, children-be acquired by adverse possession? More concretely, as now proposed by the American Law Institute, should ex-stepparents, ex-live-ins, and other adults who have shared living quarters with a parent and a child for two years have the right to litigate custodial rights with the natural parents? Given the importance of the family as the repository of many of our deepest hopes for happiness-and what Justice Blackmun called the "vital interest in preventing the irretrievable destruction of ... family life"1-it may not seem to be a cause for celebration that the American Law Institute has found it necessary to promulgate the comprehensive Principles of the Law of Family Dissolution (the "Principles"), which, among other proposals, offer strong protection for the rights of "de facto" parents.2 But the Principles are a welcome document. In the face of growing chaos in judicial and legislative approaches to family problems, especially those involving allocation of responsibility for children,3 it offers an opportunity for clarity and synthesis. And in its bold attempt to reformulate-really to revolutionize-the law of child custody, it evidences a deep commitment to the protection of children in circumstances where traditional family structures are absent or in disarray. The custodial principles contained in the ALI's new document are, of course, not the only radical proposals it encompasses.4 But chapter 2 of the new document-"Principles Governing the Allocation of Custodial and Decisionmaking Responsibility for Children"5-is arguably the most crucial component of a new vision of the family offered by the Principles. For it is in this section that the drafters outline who will have power over the lives of children, and propose an important new category of nonbiological but legal par ent-the "de facto parent." Outside intact biological families-and occasionally even within them-this new legal term of art promises to have sweeping importance. De facto parenthood creates a new kind of "extended family" for children, one in which three, four, or more adults may have status as one type or another of rights-holding parent. As such, the concept deserves careful scrutiny-at first, as here, on its own terms and later in the full context of the contentious public debate over the extent to which traditional family structures must yield to new policy priorities and empirical understandings. This article will urge rejection of the de facto parenthood provisions of chapter 2, while acknowledging that such informal caretaking relationships can acquire serious, even fundamental importance for a child.6 Instead, it will examine the relationship between that category and what the drafters identify as the two central priorities of their enterprise: (1) "to provide determinate and predictable outcomes [in custody cases] that benefit children in the vast majority of cases," and thus prevent "unnecessary litigation, the hiring of expensive experts, and strategic or manipulative behavior by parents,"7 all while (2) serving the "individualized... interests of individual children."8 Part I will briefly describe the structure of chapter 2's approach to allocations of "custodial responsibility" over children. Part II will outline the importance, recognized by the drafters, of limitations on standing in disputes over children and examine the structure of section 2.04, which essentially limits standing to persons fitting into one of the defined categories of "parent," including "de facto parent," in section 2.03. Part III will examine section 2.03's definition of "de facto parent" and argue that its indeterminacy creates an enormous potential for manipulative litigation, unfair bargaining, and interference with parent-child relationships-especially in con junction with the principles of chapter 6 9 regarding domestic partners. …