The "Family Relations" Doctrine: Extending Supreme Court Precedent to Custody Disputes between Biological and Nonbiological Parents

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The "Family Relations" Doctrine: Extending Supreme Court Precedent to Custody Disputes Between Biological and Nonbiological Parents*

Key Words: child custody, family, law, parental rights.

Custody disputes between biological and nonbiological parents typically are decided on the basis of one of two custody doctrines: the parental rights or the best interests doctrine. Each of these standards has faced criticism and an extensive amount of legal and social science literature is devoted to pitting these doctrines against one another. Other scholarly work is focused on proposing alternatives to these doctrines. Here the benefits and shortcomings of the two doctrines are reviewed and previously proposed alternative standards are evaluated. Through a detailed analysis of 5 Supreme Court cases, an entirely new doctrine-the `family relations" doctrine-is suggested. The family relations doctrine gives considerable weight to the child's current and past relationships and his or her "perceived" family. It protects the child's present psychological reality while simultaneously safeguarding both the child's and the adult's interest in maintaining past relationships, or possibly even affecting future ones.

Key Words: child custody, family, law, parental rights.

In the early 1960s, research by Bowlby on social attachment theory started to get recognition within family law (Bowlby, 1969, 1973, 1980; see also Ainsworth, 1962). In 1973 Goldstein, Freud, and Solnit released a book that was premised on the tenets of social attachment theory, which ultimately had a profound impact on family law (Taub, 1984). Beyond the Best Interests of the Child suggested that in order to truly protect the best interests of children involved in custody disputes, courts needed to go beyond their typical analysis of determining the child's best interests based on the income, education, available housing, available medical insurance, and so forth of the competing adults. Instead, courts needed to place the child with the adult to whom he or she was psychologically attached-that is, with the person to whom the child looked for daily emotional care (Goldstein, Freud, & Solnit, 1973).

Goldstein, Freud, and Solnit's focus on the importance of psychological attachments merged with the growing research on social attachment theory and a burgeoning literature on the intersection of law and social science to stimulate an important change in custody disputes between biological and nonbiological parents. Courts began to decide these disputes by considering which of the adults might best serve the child's interests, rather than automatically placing custody with the biological parent (Davis, 1987). However, doing so did not initiate a long-term trend toward using only the best interests standard in these disputes; instead, it intensified the conflict between children's rights and parents' rights by aggravating the conflict between the two custody doctrines. The implications of this conflict are discussed here and two previously proposed alternative custody doctrines, the parental preference and the psychological parent doctrines, are considered. Because even these alternatives fall short of protecting both children and adults in a fair and consistent manner, an entirely new custody doctrine is discussed, and the foundation for this new doctrine is found in the rulings of five recent Supreme Court cases.


Although the phrase "custody dispute" typically evokes images of two divorcing, biological parents engaged in a bitter court battle, each vying for custody of their child, custody disputes also arise between biological and nonbiological parents. The term "nonbiological parent" refers to anyone who is not the biological parent of a child, but who has nonetheless acted as a parent to the child. Nonbiological parents can be distinguished from persons who are "third parties" to a family unit, such as babysitters, close family friends, and even grandparents with whom the child has never lived. …


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