Academic journal article The William and Mary Bill of Rights Journal

The Constitutionality of "Best Interests" Parentage

Academic journal article The William and Mary Bill of Rights Journal

The Constitutionality of "Best Interests" Parentage

Article excerpt


The premise of this Symposium is unabashedly radical: to imagine a new law of parentage focused exclusively on the needs and interests of children. Participants were invited to set aside questions of political feasibility and the constraints of settled law in asking how the law should assign parentage if its only goal were to maximize the welfare of children.

The notion is radical because, traditionally, parentage law has been driven significantly by the needs and interests of adults - a sense of the natural entitlement of genetic parents, for instance, or society's desire to protect marriage or enable the orderly transfer of wealth between generations. One need only recall parentage law's historical treatment of non-marital children - classifying them asfilius nullius, or the child of no one - to appreciate the point.1 Even more strikingly, perhaps, the invitation expressly assumes a governmental control over the question of parentage that would strike many as alien. In its foundational case recognizing constitutional protection for family privacy, after all, the Supreme Court described the idea that government might reassign parentage in order to advance its own vision of child welfare as resting on "ideas touching the relation between individual and State . . . wholly different from" our own.2

And, yet, the invitation to think creatively and expansively about the meaning of legal parentage is extremely timely. Judges and legislators around the country are wrestling with the question as never before.3 The easy certainty of DNA testing and the fluidity of modern childrearing arrangements have combined to test fundamental assumptions about the meaning of kinship between adults and children.4 And, in responding to the challenge, some courts have opened the door to the idea of assigning parentage based directly on a judicial determination of a child's best interests.5 Accordingly, the work of crafting an explicitly "child-centered" parentage law is not solely a matter of academic interest; it is already the real- world occupation of at least some judges and lawyers.

The question that I take up in this article is whether the toe-hold that "best interests" parentage has established in American law can be sustained against objections that it violates the fundamental constitutional rights of traditional parents. In other words, is it constitutional to premise legal parentage on a governmental finding of a child's "best interests"? The answer that I come to is that, perhaps not surprisingly, it depends. Part I of the Article sketches the context in which the question now arises: the breakdown of traditional parentage law - in which legal parentage was tied closely to clear markers relating to blood, marriage, and adoption - and the emergence of judicial interest in mediating conflicts among competing parental figures by resort to a child's best interests. Part ? considers whether substantive due process protection for family privacy limits the state's power to pick and choose among the competing claimants. It concludes that, notwithstanding recent suggestions of an essentially plenary state power to redefine parental status, the Constitution likely does confer a privacy right to parental identity on at least some individuals.

Finally, in Part G?, I consider whether the privacy right to parental identity might be overcome based solely on a governmental assessment of a child's best interests. In my view, the answer is to be derived not from a rigid application of strict constitutional scrutiny, but from a more nuanced evaluation of the competing public and private interests at stake. Such an evaluation, I conclude, suggests that states enjoy considerable latitude to reorient parentage law in a child-centered direction. At the same time, any law that would defy widely shared social expectations in withholding parentage must be justified by something more compelling than a bare "best interests" showing. …

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