Nonmarital Unions, Family Definitions, and Custody Decision Making

By Holtzman, Mellisa | Family Relations, December 2011 | Go to article overview

Nonmarital Unions, Family Definitions, and Custody Decision Making


Holtzman, Mellisa, Family Relations


Relationships that have not been formalized by marriage but that function like marriage are increasingly common among couples. Many of these relationships involve children who are related to only one of the adults but who have established parent-child relationships with both adults. This raises questions about how best to preserve children's attachment relationships in the event that the adult relationship dissolves. Recent scholarship advocates two distinct approaches: some argue for legal recognition of expansive definitions of the family whereas others advocate for legal recognition of children's rights. This research examines the efficacy of these competing arguments. Findings suggest that judicial recognition of family definitions is not, on its own, enough to protect nonbiological attachments. Instead, family definitions must also be combined with a focus on children's rights. The legal and policy implications of these findings are discussed.

Key Words: child custody, family policy /law.

In late 1989 Pamela, who was cohabiting with Curt, gave birth to a child, Kristian (names are pseudonyms; CM. v. P. R., Massachusetts, 1995). Although Curt was not the biological father, he attended birthing classes with Pamela prior to Kristian' s birth and he was in the delivery room when the child was born. Curt was listed as the father on the birth certificate and Kristian bears his last name. During the first 3 years of Kristian's life, Curt was an involved parent, often assuming the primary caretaker role while Pamela worked. Shortly after Kristian's third birthday, Pamela and Curt ended their relationship and Curt moved out of their home. However, with Pamela's approval, Curt maintained his relationship with Kristian by paying regular child support and exercising regular visitation. Then, in 1993, when Kristian was 4 years old, Pamela disallowed any further contact between Curt and Kristian.

In early 1995 Laura, who was the longtime lesbian partner of Elise, gave birth to a child, Casey (names are pseudonyms; E.N.O. v. L.M.M., Massachusetts, 1999). Elise accompanied Laura to all of her prenatal doctor visits, cared for Laura throughout her trying pregnancy, and coached her through the delivery. Elise then cut Casey' s umbilical cord and wore an armband provided by the hospital staff that denoted her as a parent of the child. Casey bears the last names of both Elise and Laura. During the first 3 years of Casey's life, Elise was an involved parent - and during one 7-month period, she was the child's primary caretaker as Laura was experiencing medical problems. Then, shortly after Casey's third birthday, Elise and Laura's relationship ended and Laura precluded any further contact between Casey and Elise.

Although the facts of these cases are remarkably similar, their outcomes were strikingly different. Both cases involved unmarried couples who were living in marriage-like relationships while jointly rearing a child. Both cases involved nonbiological parents who willingly assumed parental responsibilities for a child to whom they were not genetically related. Both involved nonbiological parents who, by all accounts, established close and loving relationships with the children, and both involved nonbiological parents who, upon having their parent-child relationships involuntarily severed, sought relief from the courts in order to reestablish rights to the children. Even so, the 1995 outcome for Curt was nothing like that of Elise in 1999.

Curt was hindered by standard legal conceptions of the family. Because he was neither Kristian's biological nor presumed father (because he and Pamela were not married), he could not establish paternity and thus lacked standing, according to the court, to bring a suit for custody and visitation rights. Anticipating that the issue of paternity might pose a problem, Curt also attempted to utilize the doctrines of "equitable parent" (see Atkinson v. Atkinson, Michigan, 1987) and equitable estopple to secure rights to Kristian. …

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