The Contractual Family: The Role of the Market in Shaping Family Formulations and Rights

Even with federal recognition of marriage equality and the increasing number of states that allow same-sex marriage, marriage is not available or not desirable to everyone. Yet marriage remains a prerequisite to many legal protections. Despite the popularity and prevalence of alternative reproductive technologies (ART) as a means of having a child when natural childbirth is not feasible, biology similarly remains a prerequisite to many legal protections and rights over one’s children. Within this paradigm, the ever-growing number of families and couples not fitting the traditional mold are forced to search other areas of the law, such as contract law, for legal protections. By utilizing contract law, modern families should be able to achieve the protections that are currently awarded to “traditional” families by law upon marriage and through biology. Non-traditional families in the United States are more commonplace than ever before and the numbers continue to increase exponentially based on census data over the last 50 years. Yet despite this growth, alternative family forms are still marginalized economically, politically, and socially, as the creation of family law and policy is still widely governed by traditional family ideologies. This Article discusses how non-traditional families can utilize contract law to create and protect their families as well as to obtain many of the rights and benefits automatically conferred upon their married and biological counterparts. Specifically, the article looks at the law surrounding cohabitation agreements and co-parenting agreements. Although these types of agreements are between private parties and do not require third party consent, these agreements continue to be unenforceable in some states and in some cases.Cohabitation agreements should be recognized as a valid and necessary alternative to marriage. Freedom of contract and the right to privacy should prevent the state from restricting the ability of families to structure their own private relationships. Marriage is, in effect, a choice to be bound to a status relationship that, for some couples, is undesirable because of the traditional norms and trappings of the marital institution, the hetero-normative implications, and the general government control over family. Also, state-provided rights and responsibilities do not fit all “family” types. People in non-marital unions often seek to order their affairs in ways that are not possible under state-based options. Contracts, at least written ones, can serve the same evidentiary function that marriage does. Both marriage and formal contracts are ways of showing intent to be legally bound. Similarly, co-parenting agreements should be recognized as a necessary way to harmonize the rights of legal (biological or adoptive) and non-legal (non-biological and non-adoptive) intended parents. Co-parenting agreements can co-exist with family law’s best interest of the child standard. This Article proposes that an otherwise valid co-parenting agreement between intended parents supplies the presumption that biological parents automatically get through their genetic connection to their children — the presumption that it is in the best interest of the child to be raised by her or his intended parents. From there, custody determinations would still be made based on the best interest of the child, as with custody determinations involving biological parents where a contract exists, but with the understanding that the intended parent, whose intent is expressed and validated through contract, is the presumed best parent.