Shifting family boundaries: State courts, functional parents, and the expansion of parental status

Nontraditional families are now more prevalent than the so-called traditional family. Many nontraditional families include individuals who have no legal parental status but who function as parents on a daily basis for an extended period of time. As legal nonparents these individuals ordinarily have no right to custody or visitation and are therefore left with no legal means to secure their relationship with children they have helped to raise (or have raised entirely on their own). Recently many functional parents have argued that they are entitled to legal parental status and rights because they have taken on the parental role and that the legal definition of parenthood should be expanded to include themselves. The underlying idea is that law should "catch up" to the social reality of American family life.;This dissertation examines how state courts re-evaluate the essential elements of legal parenthood and determine which functional parents shall have legal status and rights. Several state judiciaries have established a doctrine to address these claims and these cases serve as the primary source material. Functionality by itself is not enough for a functional parent to win custody or visitation. In the overwhelming majority of cases functional parents prevail when (1) they have lived with the child in the absence of any legal parent for over one year, or (2) they were married to the biological mother within one year of the child's birth and the court had no doubt about the mutuality of their parental relationship with the child, or (3) the child had a poor quality relationship with the legal parent, or (4) a legal parent supported the functional parent's petition. This indicates that while a significant legal change has occurred---some persons are acquiring legal parental rights where previously they lacked such rights---courts are essentially reinforcing traditional family policy, which privileges the marital-based family over all other family forms and which protects the privacy of biological and marital-based families. Rather than establish new values to shape family law in a rapidly changing social context, courts have largely shaped legal changes to serve traditional values.