Rendering Children Illegitimate in Former Partner Parenting Cases: Hiding behind the Facade of Certainty

INTRODUCTIONOver the last two decades, individuals who lack biological or adoptive links to children whom they have helped raise have repeatedly asked courts for the opportunity to establish that it would be in the children's best interests for them to be awarded custody and visitation.1 Many of these cases have arisen in the context of dissolving relationships between unmarried partners (frequently, though not always, same-sex ones).2 Appellate courts in several jurisdictions have allowed unmarried partners the opportunity to show that they established, with the legal parents' consent, parental bonds with the children and that it would be in the minors' best interests for those relationships to continue.3 In contrast, appellate courts in other jurisdictions have refused to grant standing in these types of cases.4 Some of these courts have done so on the ground that legislatures are better able than courts to account for the many factors involved in determining who should have standing in custody and visitation cases.5 From this perspective, if the custody and visitation statutes do not provide standing to former unmarried partners, courts should not do so on their own.6Other courts have relied on the constitutional rights of legal parents to deny standing to former partners in custody and visitation cases.7 These courts have concluded that, unless the legal parents are unfit or neglectful,8 they enjoy a constitutional right to cut offall contact between their children and so-called "third parties,"9 that is, individuals who have neither biological nor adoptive links to the children.A third rationale for denying standing to former partners in parenting cases focuses on considerations of certainty.10 From this perspective, the use of equitable parenthood doctrines (such as de facto parenthood, psychological parenthood, and in loco parentis) to grant standing opens up a Pandora's Box of uncertainties, requiring case-by-case factual determinations of whether particular individuals established sufficiently close relationships with particular children to justify their being permitted to seek custody and visitation.11 This uncertainty, it is argued, is harmful to children because legal parents are unable to determine ex ante which of the adults whom they permit to establish relationships with their children will be able to claim parentage status in the future.12 It is also argued that granting standing to individuals who lack biological or adoptive links to the children is harmful to them because it engenders protracted litigation.13This Article assesses the certainty-based objections to granting custody and visitation standing to the former partners of legal parents. Those objections were the principal reasons why the New York Court of Appeals, in its recent decision of Debra H. v. Janice R., reaffirmed the bright-line rule it adopted twenty years earlier in Alison D. v. Virginia M.,14 namely, that an individual who lacks biological or adoptive links to the child cannot be deemed a parent.15 It also appears that certainty considerations were the main reasons why the Debra H. court created an exception to this brightline rule by granting standing to petitioners who entered into legally recognized relationships with the legal parents.16The certainty concerns raised by the Debra H. court are superficially appealing because it is generally more difficult to establish, as a factual matter, whether someone has attained the status of a functional parent under equitable parenthood principles than it is to determine whether someone is the child's biological or adoptive parent, or whether the two adults in question entered into a legally recognized relationship.17 I argue in this Article, however, that concerns regarding uncertainty in the application of equitable parenthood doctrines are greatly overblown18 and that whatever gains in certainty may accompany a narrow understanding of parenthood that is linked exclusively to (1) biology or (2) adoption or (3) the entering into a legally recognized relationship do not outweigh the harm to children that follow a categorical refusal to recognize the parentage status of individuals who have helped to raise them with the consent and encouragement of their legal parents. …