By Anne L. Alstott, Anne C. Dailey, and Douglas NeJaime. Full Text.
Family law in the United States is governed by an assortment of familiar legal doctrines and policies that often undermine, and sometimes sever, the relationships between children and the adults with whom children are most closely bonded. For example, the “best interests of the child” standard, which has long governed a host of legal determinations such as custody, offers only a vague and indeterminate guideline for decision-making, an approach that risks undervaluing the importance of children’s relationships to close caregivers. Similarly, courts and commentators commonly assert that the federal Constitution provides special protection to biological parent-child relationships, despite the fact that a biological requirement excludes children’s bonds with many LGBTQ parents and other nonbiological parents. Finally, the United States lacks a national legal commitment to economic support for vulnerable children and families, leaving poor children and parents without resources and at risk of family separation. When the state fails to support and protect relationships between children and the individuals who provide them with parental care, children are likely to experience developmental harms with potentially life-long damage to their physical and mental health.
This Article proposes and elaborates what we term the psychological parent principle, which would replace current inadequate and indeterminate standards with a clear guideline focused on the protection of relationships between children and the individuals who provide them with consistent, predictable, and emotionally invested parental care. The psychological parent principle is explicitly grounded in both developmental science and democratic values. The psychological parent principle reflects the scientific finding that the parent-child relationship is critical to human development. The principle aims to provide an overarching guideline for law, one that protects the relationship between the child and the psychological parent, with due attention to normative considerations including equality, social inclusion, and democratic self- determination. As this Article shows, reorienting law and policy around the psychological parent principle would be especially valuable for Black, LGBTQ, low-income, and other marginalized parents and children who disproportionately suffer from the failure of the state to recognize and support parental caregiving bonds.
In providing a new, overarching guideline, the psychological parent principle would reframe family law in two complementary ways. First, because it does not take as given the existing distribution of resources, the principle creates a positive mandate for lawmakers and judges to supply the material and psychological conditions necessary for successful parenting. This would require the state to distribute material resources to families and to regulate working conditions to protect parental time with children. Second, the psychological parent principle constrains legal actors from disrupting the relationship between a child and her psychological parent. The guideline directs the state to grant legal recognition to psychological parents, to protect the parent-child relationship from serious disruption or severance, and to prioritize that relationship in disputes over removal, placement, and custody. This Article illustrates how the psychological parent principle would operate by suggesting reforms in three areas of law that are foundational to children’s lives—social welfare, parentage, and custody.