Blood Ties: A Rationale for Child Visitation by Legal Strangers

I. Introduction This Article addresses some of the issues that arise when nonparents seek visitation with other peoples' children. More often than not, natural parents successfully resist assertions of child visitation rights by legal strangers such as stepparents and so-called lesbian "coparents."' However, grandparents, aided by a raft of legislation and judicial decisions, fare infinitely better when petitioning for visitation with their grandchildren. This Article discusses the current law and legal scholarship concerning visitation rights of legal strangers and concludes that courts and legislatures should support legal parents' rights to raise their children without unwanted interference from legal strangers. Legislative enactments that deal explicitly with visitation by third parties do not provide uniform or clear standards reflecting the circumstances under which visitation claims will be honored. However, the statutes generally reflect the requirement, whether express or implicit, that visitation be in the best interests of the child. By and large, courts have adopted the same standard in third party visitation cases. Against this background, some commentators have proposed changes in the law of third party visitation that would redefine parent and family to give legal recognition to relationships between children and third parties. These proposals would treat third parties and natural parents identically in visitation cases. This Article rejects these proposals on constitutional and policy grounds. Instead, the decisions of fit natural parents concerning who may visit their children should be controlling, absent a showing of significant harm or danger to the child. This position finds support in long standing and highly cherished traditional views about family autonomy and its concomitant, parental authority. Part II examines the current law relating to third party visitation claims by "coparents", stepparents, grandparents, and foster parents. Part III discusses scholarship critical of the current bases for legal recognition of parental status. Finally, Part IV proposes adoption of a third party visitation standard grounded in family autonomy and parental authority that respects the child rearing decisions of fit natural parents in the absence of a showing of harm to the child. II. The Law's Response to Third Party Visitation Claims A. "Coparents" The New York Court of Appeals's 1991 decision in Alison D. v. Virginia M.2 inspired the writing of this Article.3 Two years after Alison D. and Virginia M. established a relationship and began living together, they decided to have a child and agreed that Virginia M. would be artificially inseminated.4 The parties also agreed to share the rights and responsibilities of child rearing.5 Virginia M. gave birth to a baby boy, who was given both Alison D.'s and Virginia M.'s surnames.6 Alison D. shared in the expenses relating to the child's birth, provided support, participated with Virginia M. in child care, and was active in making parental decisions.' The parties separated when the child was 2 years and 4 months old, and his natural mother, Virginia M., eventually terminated Alison D's visitation.8 Alison D. then commenced a legal action seeking visitation rights.9 Affirming lower court decisions to dismiss the action, New York's highest court, the Court of Appeals, emphasized Alison D.'s concession that she was not the child's biological or adoptive parent.lo Instead, she claimed that she had acted as a de facto parent,11or that the court should view her as a parent by estoppel,12 with standing to seek visitation rights.13 Discussing the requirements and traditional judicial interpretation of the governing statute, the court observed: Traditionally, in this state it is the child's mother and father who, assuming fitness, have the right to the care and custody of their child, even in situations where the nonparent has exercised some control over the child with the parents' consent. …