An Off-Label Use of Parental Rights? The Unanticipated Doctrinal Antidote for Professor Mnookin’s Diagnosis

I INTRODUCTION In his seminal article, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, Robert Mnookin noted the trend in custody law away from deference to "natural parents" (a term of the times) and toward an increased focus upon children's best interests, implemented through individualized adjudications of those interests. (1) He devoted much of the article to arguing that the best-interests standard is fraught with problems in its application, and he called for solutions that move away from a judicial application of this standard whenever possible. But Mnookin in no way rejected the idea that custody law should be designed to serve children's interests. The central wisdom of the article lies in the distinction Mnookin drew between a best-interests principle, relied upon to develop a legal regime, and a best-interests standard, applied by custody adjudicators in individual cases. Children's interests would be far better served, Mnookin argued, if less was left to courts' assessments of those interests. Mnookin pursued this idea by outlining a better approach to custody decisionmaking in both the child-protection and private-custody contexts. This outline is shaped by his distrust of individualized adjudication and his embrace of the "psychological parent" theory rather than by an interpretation of the law. Indeed, in this remarkably prescient article, perhaps the only thing that Mnookin did not foresee was the doctrinal basis that would emerge for his prescriptions: The constitutional rights of parents, whose scope was just beginning to be developed at the time the article was published, have come to embody, and to a considerable extent protect, Professor Mnookin's child serving prescriptions. What this alignment suggests is that the development of the parental-rights doctrine, contrary to popular wisdom, has institutionalized a legal structure that better serves children's interests than one that leaves those interests in the hands of individual judges. Recognizing the connection between parental rights and children's interests is not new. (2) What is new is the recognition of the striking correlation between Mnookin's child-focused legal prescriptions and the parent-focused developments in constitutional law. In this article I will explore the various implications of that correlation: There is some reason to think that Mnookin's article influenced the development of parental rights under the Constitution, a previously unappreciated effect of an article that has been so widely celebrated for its influence. Whether or not influenced by Mnookin's article, the development of the doctrine clearly responded to many of the concerns Mnookin addressed and did so in a way that teased out the substantive and procedural implications of those concerns. Those concerns can account not only for much of the doctrine's development, but also for the limits of that development, limits that cannot be squared with a parent-favoring view of parental rights. The correlation also suggests some potential for doctrinal growth, growth consistent with Mnookin's aspiration to embed best-interests principles in legal rules. In this article, I discuss these points in five parts. Following this brief introduction, I set out in part II the state of parental rights under the Constitution at the time Mnookin wrote his article. Although there were only a few Supreme Court cases addressing parental rights at the time, it is nevertheless notable that Mnookin gave this doctrinal line only the slightest of nods. In part III, I set out Mnookin's prescriptions for custody determinations in both the public and private contexts and the justifications Mnookin offered for these prescriptions. In part IV, I follow the Supreme Court's development of parental rights in the child-protection context, a development that occurred within ten years of his article's publication in Smith v. OFFER, (3) Lassiter v. …