Children, Parents, and Nonparents: Protected Interests and Legal Standards

Eric G. Andersen* I. INTRODUCTION "Happy families are all alike; every unhappy family is unhappy in its own way,"' wrote Tolstoy. Unfortunately, an increasing number of unhappy families are alike in one important way: they experience wrenching struggles between adults for the opportunity to nurture children and enjoy their affection and companionship. Those contests often find their way into the courts as families dissolve in rising numbers. Usually the contesting adults are the child's parents. Increasingly, however, nonparents seek legal protection for their relationships with a child. They may play many roles in the child's life such as grandparent, stepparent, prospective adoptive parent, or a parent's nonmarital partner. What makes these stories different may seem to overwhelm the one element they have in common. Yet that common element is important: an adult who is not a parent seeks a legally enforceable relationship with the child against the wishes of the parent. In virtually every case, the nonparent has established an emotional bond with the child. That bond gives the adult or the child a psychological stake in continuing the relationship. Does it give them a legal stake in doing so? When a court decides such a case, one of its most important tasks is choosing the proper legal standard. The typical choice is between the "best interests of the child" standard and one requiring something akin to parental abandonment or unfitness. Many courts believe their choice is limited to these two. Others apply an intermediate standard of some kind. For example, they may require the nonparent to show "actual detriment" to the child if the relationship with the claimant is not maintained, but not that the parent is unfit under conventional definitions of abuse or neglect. Some courts resolve the issue on the basis of jurisdiction or standing, ruling that the court lacks power to consider the nonparent's claim or that the nonparent has no legally cognizable stake in the relationship at all. Judicial opinions often begin the analysis with a choice of standard, without considering its justification. It usually makes sense to do so, of course. A court may be bound to a particular standard by statute or precedent. There is no need to reinvent the wheel every time a dispute over access to children must be resolved. But in a day when many of the basic assumptions of family law are being questioned and challenged, looking behind the standards is worthwhile. Underlying the standards2 are three basic classes of interests: those of the child, the adult claimant(s) (whether parents or other adults), and the broader society. This article argues that the interaction and competition among these three classes of interests produces-or should produce-the standards used to resolve disputes over access to and custody of children. Although there is play in the linkage between interests and standards, the connection is strong and often direct. Examining the standard applied in a given kind of case can teach much about how the competing underlying interests were, at least implicitly, weighed and valued by the court or legislature that chose the standard. Knowing how those interests are accommodated is important, for they represent basic elements of social policy. The nonparent cases open a particularly interesting window on the connection between standards and interests for two reasons. First, they avoid the self-canceling effect of competing parental interests that, at least under the black-letter law of most jurisdictions, are legally equivalent to each other. Comparing the dissimilar interests of parent and nonparent can reveal interesting characteristics of each, particularly those of the nonparent. Second, and more important, examining the standards applied to contests between parent and nonparent in a variety of contexts provides a view of society's interest in the child-nonparent relationships in those settings. …