National Council on Family Relations is collaborating with JSTOR
to digitize, preserve and extend access to Family
Relations.http://www.jstor.orgThe "Family Relations" Doctrine:
Extending Supreme Court Precedent to Custody Disputes between
Biological and Nonbiological Parents Author(s): Mellisa Holtzman
Source:Family Relations, Vol. 51, No. 4, Families and the Law
(Oct., 2002), pp. 335-343Published by:National Council on Family
RelationsStable URL:http://www.jstor.org/stable/3700331Accessed:
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content downloaded from 122.53.19.230 on Tue, 11 Aug 2015 01:48:01
UTCAll use subject to JSTOR Terms and ConditionsThe "Family
Relations" Doctrine: Extending Supreme Court Precedent to Custody
Disputes Between Biological and Nonbiological Parents*
MellisaHoltzman** Custodydisputes between biological and
nonbiologicalparentstypically are decidedon thebasis of one of two
custody doctrines:the parentalrights or
thebestinterestsdoctrine.Each of thesestandardshas faced
criticismandan extensiveamount of legal andsocial
scienceliteratureis devotedto pitting thesedoctrines against
oneanother.Other scholarly workis focused on proposing alternatives
to thesedoctrines.Herethe benefits and shortcomingsof
thetwodoctrinesare reviewedand previouslyproposed
alternativestandards are evaluated. Through a detailed analysisof 5
Supreme Courtcases,an entirely newdoctrine-the "family
relations"doctrine-is suggested. The family relationsdoctrine gives
considerable weight to thechild'scurrentand past relationships
andhis or her "per- ceived" family. It protects thechild's
presentpsychologicalreality while simultaneouslysafeguarding
boththechild'sandtheadult's interestin maintainingpast
relationships, or possibly even affectingfuture ones. n the early
1960s, research by Bowlby on socialattachment theory startedto get
recognition within family law (Bowlby, 1969, 1973, 1980; see also
Ainsworth, 1962). In 1973 Gold- stein, Freud, and Solnit released
abook that was premised on the tenets ofsocialattachment 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 bestinterests ofchildren involvedin custody
disputes, courts needed to gobeyond their typical analysis of
determining the child's best interests based on the income,
education, available housing, available medical insurance, and
soforth ofthe com- peting adults. Instead, courts needed to place
the child with the adult to whom he or she was psychologically
attached-that is, with the person towhom the child looked for daily
emotional care (Goldstein, Freud, & Solnit, 1973). Goldstein,
Freud, and Solnit's focusonthe importance of psychological
attachments merged with the growing researchon social attachment
theory and a burgeoning literatureon the in- tersection oflawand
socialsciencetostimulate an important change in custody disputes
between biological and nonbiological parents. Courts began
todecidethese disputes byconsidering which ofthe adults might best
serve the child's interests, rather than automatically
placingcustody withthe biologicalparent (Davis,1987).However, doing
sodid notinitiate a long-term trend toward using only the best
interests standardin these dis- putes; instead, it intensifiedthe
conflict between children's rights and parents' rights
byaggravating 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 alternativesfall short of pro- tecting both children and
adults in a fair and consistent manner, an entirely new custody
doctrineis discussed, and the foundation for this newdoctrine
isfound inthe rulings offive recent Su- preme Court cases.
Background Although the phrase "custody dispute" typically evokes
im- ages oftwo divorcing, biologicalparents engaged inabitter court
battle, each vying for custody oftheir child, custody dis- putes
alsoarise between biological and nonbiological parents. Theterm
"nonbiological parent" refers to anyone whoisnot the biological
parent ofa child, but who has nonetheless acted asa parent
tothechild. Nonbiological parents can bedistin- guished from
persons who are "third parties" toa family unit, such as
babysitters, close family friends, and even grandparents with whom
the child has never lived. Nonbiological parents have livedwith and
economically and emotionally provided for the child ona daily
basis. Stepparents,gay and lesbian coparents, foster parents,
preadoptive or adoptive parents, and extended family members, such
as aunts and uncles or grandparents with whom the child has lived,
are nonbiological parents if they have functioned asa parent
toachildwhoisnottheir biological offspring. Custody disputes
between biological and nonbiological par- ents typically are
decided based on one of two custody doctrines: the parental rights
orthebestinterests doctrine. The parental rights doctrine holds
that biological parents have a fundamental right tothe custody and
control oftheir children and this right cannot be disturbed except
for the most cogent reasons (typically parentalunfitness). In
contrast, the best interests doctrineasserts that custody decisions
should be made with the child's best in- terests in mind, such that
the person whoisbest able tomeet the child's physical and emotional
needs should be awardedcus- tody(Salthe,1990).Importantly, an
underlying tension exists betweenthesetwodoctrines,therebycausing a
significant amount ofdoctrinal conflict in custody disputes
involving bio- logical and nonbiological parents. The best
interests doctrine is fundamentally about protecting the welfare of
children, whereas the parentalrights doctrineis fundamentally about
protecting the rights of adults within the confines of the
traditional family (e.g., biologicalparents raising their
biologicalchildren). Children's interests and adult's rights do not
necessarily have to conflict. In fact, for the vast majority of
children their interests and the par- ents' rights coincide;
biological parents have a right to the cus- tody of their children,
and it is in the children's best intereststo be in the care of
their biological parents(see Santosky v. Kramer, 1982).However,
insituations where children have developed strong psychological
attachmentsand parental-typerelationships 0 0 *This paper was
presented at the 2001American Sociological Association Meetings in
Anaheim, CA. **Department of Sociology, Ball State
University,Muncie,IN 47306 (mkholtzman@bsu. edu). Key Words:child
custody,family, law, parental rights. (Family Relations,
2002,51,335-343) 2002, Vol. 51, No.4 335 This content downloaded
from 122.53.19.230 on Tue, 11 Aug 2015 01:48:01 UTCAll use subject
to JSTOR Terms and Conditionsz 0 with adults other than their
biological parents, their best interests may conflict with the
rights oftheir biological parents (see In Interest ofB.G.C.,1992;
Inre AdoptionofBabyE.A.W.,1995; Petition ofKirchner,1995).
Safeguarding thewelfareofchildren and protecting the rights of
biological parents or traditionalfamilies are both highly regarded
culturalvalues that are strongly rooted in this country's history.
States are continually engaged inefforts aimed at bal- ancing a
family's constitutionallyrecognized right to privacy and freedom
from state interference (see Griswold v.Connecticut, 1965;Meyer v.
Nebraska,1923; Piercev. Societyof Sisters, 1925) and the state's
interests, as parens patriae, in protecting the welfare of children
(see Prince v. Massachusetts, 1944). This balancing actisreflected
inthefactthat when disputes arise between biological and
nonbiological parents, the court is faced with tworelevant custody
doctrines ratherthan one. Instead of relying solely on the best
interests doctrine, as is customary in disputes between two
divorcing biologicalparents, thecourts must balance the rights of
adults and the interests of children by considering both the
parentalrights doctrine and the best inter- ests doctrine.In
custody disputes between two biological parents, a parental rights
testis unnecessary because both parents are equally entitled to
custody based on their biological relationship to the child; thus,
judges pick between the adults by ostensibly focusing on the needs
of the child. However, in disputes between biological and
nonbiological parents, the competing adults are noton equal footing
because their genetic relationship tothe childdiffers.Instead the
rights oftheadultsnowmustbe weighed in addition to the interests of
the child, so both custody doctrines may be relevant. The
parentalrights doctrine allows judges to streamlinethe
decision-making processbychoosing betweenthe competing adults
strictly on the basis oftheir biological relationship to the child,
whereas the best interestsdoctrineallows judges to engage in an
analysis that is typical of divorce by choosing between the adults
on the basis ofwho can best meet the child's needs (see Cahn,
1997). Although it is possible that the application of either
doctrine willresult in the same outcome, it also is possible that
reliance on one doctrine over the other may result in a different
outcome. For instance, in cases where the child's psychological
attachment figure isthe biological parent, the application ofei-
ther doctrine willresult inthe same outcome-placement with the
biological parent. In caseswhere the child's psychological
attachment figure isthe nonbiological parent, application ofthe
best interests doctrine will likely place custody with the nonbi-
ological parent, whereas application ofthe parentalrights doc-
trine will likely place custody with the biological parent. In the
second scenario the doctrines conflict, and it isunder these cir-
cumstances that judges are faced with a dilemma because they must
decide which doctrine should be paramount in deciding the case.
Unilateral Adoption oftheBestInterestsTest The potential for
conflict between these two custody doc- trines has led scholars to
advocate for the unilateraladoption of one or the other by the
courts. For instance, Salthe (1990) argued that both the child's
needs and the biological parent'srights could beaccommodated
through the singular use ofthe best interests doctrine
(seealsoO'Keefe,1991).The bestinterests doctrine wouldcontinue to
protect biologicalparents where theyhave psychological
relationshipswith their children;it also would pro- tect children
from interruptions in their attachments,regardless of whetherthose
attachmentswere to biological or nonbiological parents. However,
unilateral adoption of the best interestsdoctrineis unlikely to
consistently protect the needs of children and adults
simultaneously.First, the best interests test can beused tosur-
reptitiously maintainthe parentalrights doctrine ("Alternatives,"
1963; Hill,1991). In disputes between biological and nonbio-
logical parents, courts frequently find that it isin a child's best
interests to be raised by his or her biological parents(see North-
land v. Starr, 1998). Such a finding is based, in part, on the view
that biological parents are the "natural"custodians of their chil-
dren, and that the nuclear family isthe"foundation of society and
civilization" (Kulan v. Anderson, 1939, p.991).Although there
ismerit inthis perspective, itsindiscriminate application enables
courts to achieve an outcome that is consistent with the
parentalrights doctrinewithout actually employing that doctrine.
Thus, it is possible that the best interests doctrine could be used
to protect parentalrights while simultaneously squelching chil-
dren's needs. Second, scholars have argued that the best
interestsdoctrine elevates children's needs toofar above parents'
rights. For in- stance, Richards (1992)argued that although the
best interests doctrine does go a longway toward protecting
children's psy- chological relationships, it also may open the
floodgates too far, thereby allowing third parties who are not
psychological parents to bring suit against the biological parents
simply because they dislike the parents' lifestyle. Likewise, Kaas
(1996)argued that a best interests test isunconstitutional
precisely because it does elevate children's needs above parents'
rights. Several Supreme Court precedents have protected the rights
of biological parents; thus, any application ofthe best interests
test that would strip away the constitutionallyrecognized special
status of biological parenthood would beunconstitutional (seeMeyer
v. Nebraska, 1923; Piercev. SocietyofSisters,1925;Santosky
v.Kramer, 1982). The interests ofthe child and the biological
parent must bebalanced against one another.To the extent that the
best in- terests doctrine elevates children's needs above parents'
rights, it isunable to do this. Finally, the best interests
doctrineis unable to simultaneous- lysafeguard the interests
ofchildren and adults because it, like most legal doctrines, is
predicated onan adversarial system of law. The best interests
doctrine pits adults against oneanother with the assumption that
only one can win. Thus, although the child's needs matter, much
ofthe actual focus ofthe dispute is onthe adults: oneadult winsand
oneadult loses.Thechild's "win" isassumed, because it is tied to
the winning adult's out- come. However, it is naive to assume that
the child always wins in custody disputes. Awin for one parent may,
in fact, signal a lossfor the child-lossofcontact with the losing
adult, lossof an attachmentfigure, loss of previously established
routines and family patterns, and so forth. In fact, some scholarly
work sug- gests that in many (ifnot most) situations, for the child
to win, both adults must win. Both parents could besaid to win
ifthe childwasable tomaintain arelationship with both. Although
this is commonplace in the case of divorce, it is much less com-
mon in disputes between biological and nonbiological parents.
Focusing lessonthe competition between the adults and more onthe
ways that they each might beable toserve the child's
needsovertimewould de-emphasize thecurrent adversarial quality of
the best interests doctrine. According toBartlett (1984),custody
lawisbased onthe 336 Family Relations This content downloaded from
122.53.19.230 on Tue, 11 Aug 2015 01:48:01 UTCAll use subject to
JSTOR Terms and Conditionsideaof"exclusive" parenthood, meaning
thelaw recognizes only oneset of parents for each child (see also
Boskey,1995; Henry,1993; Woodhouse, 1994). Inmost states, children
can legally have only onemother and onefather. This means that
stepparents, foster parents, and gay and lesbian coparents have no
legally recognized relationship with their nonbiological chil-
dren, and they cannot establish such a relationship without sev-
ering the legal status of the biological parent.(Some states, such
as Vermontand California, have allowed same-sex coparents to adopt
their nonbiological children without terminating the pa- rental
rights of the biological parent but this is still rare). To the
extent that theadults and the children involved perceive these
nonbiological relationships to be familial, parent-childbonds, the
notion of exclusive parenthood does not meet their needs. It does
not recognize that forchildren a parent-childrelationship can exist
with more than one parent or set of parents. This suggests that the
notion of exclusive parenthood that isenshrinedin cus- tody
doctrine, including the best interests doctrine, makes it dif-
ficult fortheinterests ofchildren and adults tobeservedsi-
multaneously. Unilateral Adoption oftheParental Rights Test
Singular use of the parentalrights doctrinealso would prove to be
an unsatisfactoryway to accommodatechildren'sinterests and adults'
rights. First, this doctrine results in the adult's rights being
elevated far above the child's, thereby rendering the doc- trine
incapable of adequatelyprotecting the interests of children. By
conceiving of childrenas persons to whom biological parents have
"rights," it is impossible for the parentalrights doctrine to
simultaneously protect the independent rights ofchildren and adults
(seeWoodhouse, 1992).Relatedly, thedoctrine ignores the fact that
the child's psychological attachments may lieout- side the
biological family ("Alternatives," 1963; Bartlett,1984). Second,
the parental rights doctrine, likethe best interests doctrine, is
predicated on an adversarial model, so it does little to promote
notionsof"nonexclusive parenthood" (Bartlett, 1984). By focusing on
the need to find the biological parent unfit to deny custody, the
doctrine implies only one winner and treats the child's win or
lossas a nonissue. If the biological parent is fit, he or she wins
custody and the nonbiological parentloses; if the biological parent
is unfit, he or she losesand the nonbiolog- ical parent wins by
default. However, either scenario may result in a loss for the
child, if his or her long-term best interestswould be promoted by
maintaining an attachmentto both parentalfig- ures (Bartlett;
Boskey,1995; Bowlby,1969;Erickson, 1963). Relatedly, a finding
ofunfitness that results inthe termination ofthe biological
parent's rights, insome instances, may hinder the child's long-term
interests. Leaving open the possibility for establishing
attachmentslater inlifeis importantbecause, al- though children
(especially young children) initially may be un- interested in
relationships with biologicalparents withwhom they have had little
contact or scarcely know, their curiosity may be peaked later
inlife.Thus, whereas it may beinthe child's best interests to
remain in the custody of the nonbiological par- ent, it may not be
in the child's best interests to simultaneously sever all ties to
the biological parent.Even if a relationship with both sets of
parents (biological and nonbiological) may beun- warrantedor
unimportantat one stage of a child's life, fostering relationships
with both setsof parents may be veryimportant emotionally for the
child at a later stage of life (see Eagle, 1994; Woodhouse, 1994).
Overall, then, society's interestin safeguard- ing
thewelfareofchildren cannotbe easily accommodated through the use
of the parentalrights doctrine. Alternative Custody Doctrines
Because unilateral adoption of either the best interests doc- trine
or the parental rights doctrine would dolittle tosimulta- neously
meet the dual goals of society to protect children and adults,
scholars have proposed a variety ofalternative custody
doctrines-most notably ofwhichare the parental preference doctrine
and the psychological parent doctrine (see Davis, 1987; Kaas, 1996;
Richards, 1992). Both of these are basically a mod- ification ofthe
original custody doctrines. The parentalprefer- ence doctrine
builds on the tenets of the parentalrights doctrine, whereas the
psychological parent doctrine builds onthe tenets ofthe best
interests doctrine. The Parental Preference Doctrine According to
proponents of the parentalpreferencedoctrine, all custody cases
should begin with a preference for the biolog- ical parent, but
this preference should be rebutableon the basis of the needs of the
child (Kaas, 1996). Unlike the parentalrights doctrine, which
protects the rights of biological parentsirrespec- tive of the
needs of the children, under a parentalpreference test the
preference for the biological parent can be overcome. Thus, even
fit biological parents could lose custody underthis doctrine, ifthe
child's emotional and psychological interests would best beserved
by remaining in the custody of the nonbiological par- ent (see Inre
Marriage ofButtrey, 1995).Proponents ofthis doctrine assert that a
parentalpreference is the best way to pro- tectadults and children
because the importance ofthe parent- child relationship is not
sacrificedfor the needs of only the adults or only the children.
Although the parentalpreference doctrineis an improvement
overthebestinterests and parental rights doctrines, itisstill
subject to the same criticisms that underminedthe effectiveness
ofthe original doctrines. Like the parental rights doctrine, the
parentalpreference doctrine remains adult-centered.Ratherthan focus
on the interests of the adults and children simultaneously, the
emphasis remains on the competing adults and who among them hasmore
rights tothe child. Not only doesthe doctrine continue to be
adult-centered, but it also precludes the recogni- tionof multiple
parents bycontinuing toconceiveof custody outcomes in a
winner-take-allfashion. The Psychological ParentDoctrine The
psychological parent doctrinewas first introducedas an
alternativetothe best interests and parentalrights doctrines in
1963 ("Alternatives," 1963; see also Davis, 1987). Like the best
interests doctrine,this doctrinefocuses on the needs of the child,
but it does so by attemptingto determinewho, among the com- peting
adults, isthe child's psychological parent. The psycho- logical
parent isthe person with whom the child has his or her primary
affection-relationship.Proponentsof the doctrine argue that
emotional attachmentsrather than biological relationships are
fundamentalfor healthy child development and are, there-
fore,mostcrucialfor determining custody(Goldstein etal., 1973).
Although the best interestsdoctrineand the psychological parent
doctrine seemsimilar inthis context, they are not nec- essarily so.
In using the best interests doctrine,judges may con- sider
thechild's psychological attachmentsaspart ofawhole list ofcriteria
(including the income, housing, and insuranceof 0 0 2002, Vol. 51,
No.4 337 This content downloaded from 122.53.19.230 on Tue, 11 Aug
2015 01:48:01 UTCAll use subject to JSTOR Terms and Conditionsz 0 u
w0 the adults) tobeaccounted for in determining the child's best
interests. In using the psychological parentdoctrine,psycholog-
ical attachmentsare the only criteriato be considered. This custody
doctrine is problematic.First, the doctrinehas been criticized not
necessarily on the basis of the outcomes pro- duced but on the
basis of the theory upon which it is grounded. Given that the
psychological parent doctrine isbased on the te- nets of
psychoanalysis-a controversial theory in itself--schol- ars argue
that it may beunwisetousethedoctrine in legal decision-making
(Davis,1987; Waters & Noyes,1983). Addi- tionally, this
doctrine, like the others, precludes the recognition of multiple
parents. As Watersand Noyes note, because the doc- trine stresses
the importance of a single attachment figure it "un-
derestimates"the viability of shared parenting as a family struc-
ture" (p. 505). Research demonstratesthat children are capable of
and even profit from multiple simultaneousattachments (Ains- worth,
1989; Lamb, 1977). People form a variety of attachments throughout
their lives, andeachofthese relationships offers unique benefits to
the participants(see Ainsworth, 1989). Just as adults benefit in
different ways from relationships with spouses, children, and close
friends, it can be expected that children,too, will benefit from
the maintenanceof multiple attachments.How- ever, none ofthe
current custody doctrines, including the psy- chological parent
doctrine, promote custody awards that recog- nize nonexclusive
parenthood. ANew Custody Doctrine On the basisofthe problems each
ofthese doctrines pre- sents, anew doctrine that accommodates
adults' and children's rights simultaneously is needed. Moreover,
for a new doctrineto have widespreadeffect, it needs to be based on
more than schol- arly debate and social science research.The debate
and research surrounding the psychological parent doctrinewas
extensive and its impact on custody law was profound (Davis,1987;
Guggen- heim, 1983; Smith, 1978). Yet, ultimately even the effect
of this doctrine was piecemeal and sporadic. For instance, although
the theory ofthe psychological parent doctrine influenced judicial
decision-making in the state of New York immediatelyfollowing its
introductioninto the law, it did not have the expected long- term
effect. Judges apparently retreatedfrom the doctrine during
the1980s (seeDavis; seealso Matter of Adoption of Male M, 1980;
Dennis T. v. Joseph C.,1981). In contrast,judges in the state of
Illinois were unaffected by the trend toward the psycho- logical
parent doctrine. Illinois has a long history of protecting parents'
rights and that tendency remained steady even after the
introductionof psychological parent theory into the law (see In
reTownsend's Custody, 1980; People exrel.Dizney v.Witt, 1975;
Petition ofKirchner, 1995). Clearly, socialscientific re- search
and scholarly articles recommendinga new custody doc- trine are not
enough toaffectwidespread changes incustody law. However, using
Supreme Court precedent as the basis for a new custody doctrine may
be the key to getting it accepted be- causeitwould significantly
bolster thedoctrine's legallegiti- macy. U.S. Supreme Court
decisions set legal precedents for the entire country. Assuch,any
doctrine predicated on Supreme Court rulings would likely be
adoptedby each of the states more readily than one predicatedonly
on social science research. The basis for a new custody doctrinecan
be found in a series ofunwed father casesdecided bythe Supreme
Court between 1972 and 1989. These cases have been interpreted to
hold that an unwed father's right to his child is
constitutionallyprotected only ifheestablishes a relationship with
the child. Inshort, a biological connection tothe child isnot
enough to ensure cus- tody and visitation rights; a father must
forge an emotional con- nection withthechild (Hill,1991;
Visconti,1988).However, several recent scholars suggested that
alloftheunwed father casesshould be interpreted to protect family
units rather than simply parent-childrelationships (Dolgin, 1993;
Forman, 1994; McCarthy, 1988). I argue that the cases protect both
established relationships and family units, albeit
inconsistently.Importantly, it is precisely this inconsistency by
the Court that allows for the formation ofa new custody doctrine
that I call the "family re- lations doctrine." The remainderofthis
article analyzes the un- wed father cases to demonstratehow these
cases give rise to the family relations doctrine. The Unwed Father
Cases: Protecting Relationships, Family Units, or Both? The Supreme
Court decided itsfirst unwed father casein 1972. In Stanley v.
Illinois (1972), the biological father of three children born out
ofwedlock appealed from adecision by the Illinois Supreme Court
tosustain adeclaration of dependency made by the state ofIllinois
with respect to the children. Peter Stanley had cohabited with the
biological mother of his children intermittently for18 years, had
developed and maintaineda pa- rental relationship with all
ofhischildren, and had never dem- onstratedhimself to bean unfit
parent. Following the death of the children's mother, the state
ofIllinois declared his children to be dependents and wards of the
state; consequently,they were placed with court-appointedguardians.
Stanley appealed, argu- ing that the placement ofhis children with
guardians was a vi- olation ofhis due process and equal
protectionrights given that he did not first receive a
hearingregarding his fitness as a parent. He was presumed unfit
based solely on the fact that he was not marriedto the
children'smother.The U.S. Supreme Court agreed and reversed
thestate court ruling. Importantly,although the Court's opinion
doesnotdiscuss Stanley's relationship tohis children explicitly,
the decision does foreshadow the relational emphasis that is
present in future cases. Byrecognizing Stanley asa parent where
prior Illinois law had defined only wed bio- logical fathers (and
wed or unwed biological mothers) to be par- ents, the Court implied
that relationships are a defining feature of parenting. Perhaps
without fully articulatingit, the Court also was sug- gesting that,
for unwed fathers, neither blood, marriage, nor par- ent-child
relationships are enough to independently endow fa- thers with
custodial rights. Instead, they alsomust establish a relationship
withthechild'smother. TheCourt hinted atthis whenit justified
itsdecisiontoreverse theIllinoisSupreme Court by noting that "the
integrity of the family unit has found protection in the Due
Process Clause of the FourteenthAmend- ment.., .theEqual Protection
Clause ofthe FourteenthAmend- ment..., and the Ninth Amendment" (p.
651). In short, because theIllinoisdecisioninfringed upon
theintegrity ofStanley's family unit, it was unconstitutional. The
Court was more clear in the articulationof its decision- making
rationale inQuilloin v.Walcott (1978).Here the Court ruled in favor
ofa Georgia statute that allowed the adoption of a child by his
stepfather over the objection of the child's biolog- ical
father,Leon Quilloin. In this case, the biological father had had
little to no contact with the child for 11 years. Because the 338
Family Relations This content downloaded from 122.53.19.230 on Tue,
11 Aug 2015 01:48:01 UTCAll use subject to JSTOR Terms and
Conditionsfather "had not taken steps to support or legitimate" his
son, the Georgia Supreme Court found, and theU.S. Supreme Court
agreed, that he was not entitled "as a matterof due process and
equal protection to an absolute veto over adoption of his child"
(p. 253).Instead, "any constitutionallyprotected interest [Quil-
loin]might havehad waslost"onthe basisofhisfailure to legitimate
his son (p. 254). Thus, one could argue that according to the
Court, Quilloin forfeited his rights to his child because he did
not establish a relationship with him. In fact, the Court jus-
tified its decision, at least in part, byarguing that Quilloin had
not only "never exercised actualor legal custody over his child,"
but healso had never been responsible for"the daily supervi- sion,
education, protection, or care ofthe child" (p. 256).
Again,although Quilloin washeldaccountable fornever establishing a
parent-childrelationship with his son, a close read- ing ofthe
casedemonstratesthat the Court alsowas thinking about Quilloin's
failure toestablish a "family unit"withthe child and his mother. At
the outset ofthe opinion, Justice Mar- shall noted that Quilloin
and the child's mother "never married each other or established a
home together" (p. 247). Even more important, the Court emphasized
that Quilloin had never been "a de facto memberof the child's
family unit," but the stepfather whowas proposing to adopt the
child"was part ofthe family unit in which the child was in fact
living" (p. 252-253,emphasis in original). The Court went on to
justify its decision to uphold the Georgia Supreme Court's ruling
on the basis of the fact that "the result of the adoption in this
case is to give full recognition to a family unit already in
existence" (p. 255). A year later inCaban v. Mohammed (1979) the
Court in- validated asimilar NewYork statute that enabled two
children tobe adopted by their stepfather overthe objections
oftheir biological father. However, unlike Quilloin, Abdiel Caban,
the father inthis case, had established a"substantial" parental re-
lationship (p. 387) with his children, and he had lived with their
mother for 5 years. In fact, during the years they cohabited,they
represented themselves as husbandand wife, althoughthey were not
married; even after their separation Caban continued to ex- ercise
visitation with his children.The Supreme Courtconcluded that the
NewYork statute that allowed unwed mothers to with- hold consent
regarding the adoption of their childrenbut did not similarly
allowunwed fathers towithhold consent was uncon- stitutionalon the
basis of the Equal ProtectionClause. The Jus- tices reasoned that
"the present case demonstratesthat an unwed father may have a
relationship with his children fully comparable to that of the
mother," for after all, Caban, the children's mother, and the
children had "lived together as a natural family for sev- eral
years" and "membersof this family, both motherand father
participated inthe care and support oftheir children" (p. 389,
emphasis added). Ultimately, Caban retained his rights tohis
children. The fourth unwed father case tocome before the Supreme
Court, Lehr v. Robertson (1983), was perhaps the most explicit in
its discussion of parent-childrelationships and the most am-
biguous in its discussion ofthe importance ofa "family unit." In
this case the biological father, JonathanLehr, was unable to
prevent the adoption ofhis daughterby her stepfather because Lehr
had"never had any significant custodial, personal, or fi- nancial
relationship" with her, nor did he"seek toestablish a legal
tie[with her] until after she was two years old"(p. 262). The
Courtrefused to protectLehr'sinterestin his daughtersolely on the
basis ofhis biological tie to her. Without an established
relationship, hedidnot possessanyconstitutionallyprotected rights.
Justice Stevens made this point explicit when he wrote: The
significance of the biological connection is that it offers
thenatural father an opportunity that noother male pos- sessesto
develop a relationship withhis offspring. Ifhe grasps that
opportunity and accepts somemeasure ofre- sponsibility for the
child's future, he may enjoy the blessings of the
parent-childrelationship and make uniquely valuable
contributionstothe child's development. Ifhefailstodo so, the
Federal Constitutionwill not automaticallycompel a state to listen
to his opinion ofwhere the child's best inter- ests lie. (p. 262)
Thus, the Court wasclear that the lack ofa parent-child rela-
tionship prevented Lehr from exercising anydecision-making power
with respect to his daughter. The Court did imply that Lehr's
failure to establish a family unit with his daughter and her mother
wasan important factor as well.The Justices noted that, like the
Quilloin case, allowing the adoption in this case would "give full
recognition to a family unit already in existence"
(p.263).Relatedly, the adoption would give"legal permanence" to the
child's relationship with her stepfather-arelationship the two had
enjoyed for nearly two years (p. 264). In the final
casetocomebefore the Court, Michael H.v. Gerald D. (1989), the
Justices were asked to invalidate a Cali- fornia statute that
presumed any child born into a marriage was the legitimate
offspring of that marriage. The appellant, Michael H., hadfathered
achildwithawoman whowasmarried to someone else, Gerald D.Because
the child was born during the woman's marriage to Gerald D., by
virtue of the Californiastat- ute, he was presumed to be the
child's father.In short, Michael H. had no recognized legal rights
to his biological daughter be- cause the law assigned the status of
parent of GeraldD. Michael H.'s relationship with his daughter
wasnot merely biological. The child's mother had allowed Michael H.
to establish a rela- tionship with the child; in fact, she
referredto him as "daddy" (p.144). Thus, when his relationship with
his daughter was in- voluntarily cut off, Michael H. sued for
visitation rights. He was denied because hewasnotthe recognized
legal father ofthe child. Hence, he brought suit to have the
California statute that deemed Gerald D.to be the legal father
declared invalid. Michael H. argued that the prior unwed father
cases estab- lished a precedent that protected his rights, because
he was the child's biological father, and hehad an established
relationship with her. The Court rejected Michael H.'s
interpretation ofthe prior casesastoonarrow. Theyargued that the
unwed father cases did not rest merely on"biological fatherhoodplus
an es- tablished parentalrelationship" but upon "the historic
respect- indeed, sanctity would not betoostrong aterm-traditionally
accordedto the relationships that develop within the unitary fam-
ily"(p. 123). The Justices went on to note that "the family unit
accorded traditionalrespect inour society, which wehave re- ferred
toasthe'unitary family,' is typified, ofcourse, by the
maritalfamily" (p. 124). Consequently,they ruled that the fam- ily
unit that wasalready established between themother, her husband
(Gerald D.),and the child was accorded constitutional protection.
Michael H.'s desire to infringe upon that family unit by having
hisstatus as a parent to the child legally recognized was not
accorded such protection. Ultimately, byinvoking the family unit
approach, the final unwed father caseostensibly elevated that
decision-making ra- 0 0 2002, Vol. 51, No.4339 This content
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use subject to JSTOR Terms and Conditionsz 0 u w0 tionale above the
relational approach. On the basis of this, some scholars argued
that the rulings ofeach prior casealsowere fundamentally about
established family units: Those fatherswho did establish a family
unit with the child's mother prevailed in their efforts to have
rights to their children whereas those who did not failed
(Dolgin,1993). Perhaps it is not that simple. The dissent inMichael
H.asserted forcefully that the casesshould be read to protect
parent-childrelationships(see p.142-144). It appears that the
Justices, themselves, were not entirely precise intheir
decision-making; sometimes relationships were para- mount (as in
Lehr), sometimes family units were paramount(as in Quilloin), and
sometimes both were paramount(as in Caban). This suggests that both
relationships and family units were im- portant to the Justices in
all cases. Because their application was not clearly articulatedor
precisely defined, inconsistencies de- veloped in their approach.
It isthese inconsistencies that allow for the formationofa new
custody doctrine that is still founded upon this existing Supreme
Court precedent. Extending theUnwedFatherCases To summarize, each
ofthe five unwed father cases empha- sizesthe importance of
relationships and family units.The Court's rulings in Stanley and
Caban enabled unwed fatherswho had established relationships
withtheir children and whohad livedwith the children's mothers ina
"family unit" toretain rights to their children. In Quillion and
Lehr the unwed fathers had their rights to their children
terminatedbecause they did not have established relationships with
their children, and they had never lived ina family unit with the
mothers oftheir children. Finally, in Michael H. the unwed father
lost rights to his child, despite his established relationship with
her, because her mother wasmarried toanother man and the
childwasborn into that family unit. I argue that a reading of the
unwed fathercases that recognizes the emphasis on both
relationships and family units and recognizes the inconsistencies
and ambiguities in the ways the Justices applied these two
decision-makingcriteria,opens the door foranew custody doctrine
that protects established rela- tionships and family units.
Icallthis the family relations doc- trine. According tothis
doctrine, custody disputes should be de- cided by placing physical
custody with the parents to whom the child is psychologically
attached.Research suggests that attach- ments are based on the
amount and kind of contact the child has with the adult (Curtis,
1980; Goldstein et al.,1973). Daily con- tact with a parent and
daily reliance on the parent tomeet the child's needs willincrease
the levelofattachmentbetween the childand theadult. Thus,although
timeand contact are not perfect indicators of attachment,they do
provide some insight into the relationshipthat exists between the
child and the adult. Attachment
alsocanbeassessedonthebasisofinformation provided by
thechild,suchasastated desire tolivewitha particularparent
orreferences tothenonbiological parents as "mom" and "dad."
Typically the parent or parents in the child's currentfamily unit
will be the adults to whom he or she is psy- chologicallyattached.
Byfocusingonthecurrent family unit, the family relations doctrine
protects continuity within the fam- ily. Physical custody
withoneparent orsetof parents would not necessarily preclude
legalrights vested inthe other parent or parents.Because the
doctrineis not inherentlyadversariallike theothers, it emphasizes
relationships rather than competition betweenadults. Consequently,
theadversarial, winner-take-all flavor is gone, sothe doctrine does
not preclude recognition of multiple parents. If relationships
exist between the child and both the biological and nonbiological
parents, the emphasis onde- veloped relationships ensures
maintenanceof those relationships bylegally recognizing the
parental status ofboth sets ofadults. Byvesting rights in both the
biological and nonbiological par- ents, this doctrine facilitates
continued relationships between the parents and thechild through
shared decision-making forthe adults and continued visitation
between the noncustodial parent and the child. This is especially
important for gay and lesbian coparents or former stepparents who
typically have no legally recognizedrelationship totheir
nonbiological children, and therefore, are not entitled to
visitation with the childrenover the objections ofthe biological
parent (see Kazmierazakv. Query, 1999). The family relations
doctrine alsodoesnot necessarily preclude the establishment of
multiple relationships if they do not already exist. Overall, this
doctrine goes a long way toward protecting the interests ofchildren
and adults simultaneously. Protecting the interests of children and
adults by preserving their attachmentsto one anotheris a worthy
goal. Research sug- gests that socialattachmentsare a key to
psychological well- being and that insecure orsevered
attachmentsare associated with psychological maladjustment and
psychopathology(see Ro- senstein & Horowitz, 1996; Ross,1995).
For instance, Khaleque and Rohner (2002) found strong support for
the contention that perceived parentalrejection results in
maladjustment in children. Although this research wasfocusedon
biological parent-child relationships, itcan beassumed that the
perceived parental re- jection that would likely accompany the
lossofa nonbiological parent would be psychologically damaging as
well. Using Supreme Court precedent to fashion this new doctrine
isnot without obstacles. First, the Justices certainly did not in-
tend for the family unit argument to apply outside the confines
ofthe biological family. They suggested as much in Lehr when they
noted that "the adoption does not affect [the child's] rela-
tionship with her mother", but it does give"legal permanence" to
her relationship with her stepfather(Lehr v. Robertson, 1983,
p.264).Likewise, in Quilloin they noted that the case was not one
in which "the proposed adoption would place the child with a new
set of parents"; instead, the result ofthe adoption would be"to
give full recognition to a family unit already in existence"
(Quilloin v.Walcott, 1978, p. 255). Second, despite my contention
that the family relationsdoc- trine would accommodatecontact with
multiple parents, the Jus- tices clearly did not intend for their
rulings to be used to advo- catetheideaofnonexclusive parenthood.
Theyexplicitly re- jected such an argument in Michael H. when they
asserted that, despite the fact that it might be to the child's
benefit to maintain relationships with both Michael H. and Gerald
D., the idea that "a State must recognize multiple fatherhoodhas no
support in the history or traditionsofthis country" (p.131), for
after all, "natureitself makes no provision for dual
fatherhood"(Michael H.v. Gerald D.,1989,118). Addressing some ofthe
ambiguities and inconsistencies in- herent in the Court's decisions
will help overcome these obsta- cles.First, the Court left the
importance of biology in the deci- sion-makingprocess ambiguous.
Because four of the five unwed father cases involved disputes
between a biological father and a biological mother and her
husband,the Justices were never in a position tohave
tochooseunequivocally between a biological parent and a
nonbiological parent.Regardless of their decisions, the children
would remain in the custody of a biological parent. 340 Family
Relations This content downloaded from 122.53.19.230 on Tue, 11 Aug
2015 01:48:01 UTCAll use subject to JSTOR Terms and
ConditionsConsequently,although the biological relationships were
certain- ly an issue, the establishment of
parent-childrelationships and family units were pushed tothe fore
and used todifferentiate between those parents who had
constitutionallyprotected inter- ests in their children and those
who did not. In short, Iam suggesting that theCourt wasat alltimes
faced with issues of biology because the biological fatherin each
casestood to gain or loseaccess to his children on the basis of the
Court'sdecision. However, I also am suggesting that the issue of
biology nonetheless remained implicit, as four of the five cas- es
were essentially disputes between two biological parents-the
custodial biological mother who was attempting to limit the bi-
ological father's rights to hischildren and the biological father
whowas attempting toexertthose rights. Consequently, the competing
parties couldnotbe distinguished onthebasisof biology alone, so the
Justices differentiatedbetween them on the basisofestablished
relationships. Had the Justices been faced with disputes between an
unwed biological father and the chil- dren's nonbiological parent
(e.g.,stepfathers who retained cus- tody oftheir stepchildren
following the biological mother's death), the emphasis placed on
the biological relationships cer- tainly would not have remained
ambiguous. This means that the importance of biology,
relationships, and family units never has been determinedrelative
to one another.Because the importance of biology remained implicit
in the Court's analysis, the unwed father casescreated precedents
that effectively elevated estab- lished relationships and family
units above biological ties. Two biological fathers won their cases
because they had established relationships with their children and
with their children's moth- ers; two biological fathers lost their
cases because they had not established such relationships; and one
biological father lost his case because he had done one ofthese
things but not the other. Inand of itself,biology
wasnotadeterminativefactor inthe decision-makingprocess. Even
though the issueof biological relatedness wasnot a key factor in
the decision, the cases had unforseen consequences for disputes
between biological and nonbiological parents. In three casesaloss
by the biological father resulted inthe non- biological father
gaining recognized legal status asthe child's parent; the
stepfathers in Quilloin and Lehr were able to adopt their
stepchildren, and the "presumed" fatherin Michael H. was able
tomaintain his legal status as father even though hewas not the
child's biological or adoptive parent. Without explicitly
articulatingit, or possibly even recognizing it, the Justices es-
tablished precedents that emphasized established nonbiological
relationships over biological ones. It is possible that in leaving
the importance of biologyambiguous (orassumed) theCourt paved the
way for these precedentsto be extended to cases where the dispute
isbetween a biological and a nonbiological parent. For instance,
the precedents could plausibly beusedto argue thatestablished
parent-child relationshipsand familyunits should bethe
determinativefactors in deciding the case rather than biology.
Interpretedinthis way, the family relations stan- dard could be
used to protect established relationshipswithin a nonbiological
family unit. Second, the Justices were inconsistent in their
applicationof theideaofa familyunit. Insomecases,theCourt protected
previous biological family units, whereas inothers it protected
current nonbiological family units. In each case, the family unit
that was protected bythe Court wasonethat either no longer existed
but had been composed of both biological parentsduring its duration
(previous biological family unit) or currentlyexisted and contained
one adult who was not biologically related to the child (current
nonbiological familyunit). InCaban theCourt noted that the
biological father,mother,and children had at one time lived
together ina family unit. Consequently, the Justices made their
decision to protect Caban's rights on the basis of the importance
of protecting previous biological family units. Even though a new
nonbiological family unit also had been established between the
children, their biological mother, and their stepfa- ther, theCourt
gave scant attention tothe current family unit. The Justices
apparently saw no reason to give explicit protection to that
relationship. In contrast,in Quilloin and Lehr no previous family
unitexisted involving both biologicalparents butthe Court continued
tostress the importance of family units by em- phasizing the
child's current nonbiological family unit. In both cases,the Court
justified itsdecision tosever the rights ofthe biological fathers
totheir children because doing sowould le- gitimate the family
units that already existed between the child, the biological
mother, and the stepfather. In these cases, current nonbiological
family units did enjoy explicit protection. In es- sence,iftheCourt
had two family units tochoosefrom (one current and one previous),
it emphasized the prior biological family unit over the current
nonbiological family unit. When the Court was faced solely with a
current nonbiological family unit, it protected that family unit;
in doing so biological fathers were divested of rights to their
children. Ultimately, the Justices rec- ognized the importance
ofcurrent nonbiological and past bio- logical relationships in the
lifeofa child but they refused to do so simultaneously. This
refusal to validate both types of family units simultaneously
represents an inconsistency inthe Court's analysis ofwhich the
Justices were likely unaware. The Court explicitly rejected the
notion ofnonexclusive parenthood in Mi- chael H.; yet, the Court's
own precedentseffectively encapsulate thenotion ofnonexclusive
parenthoodbyrecognizing the im- portance of past and present
relationships. Nonexclusive parent- hoodvalidates past and present
relationshipbysuggesting that courts allow children to maintainties
to multiple sets of parents. Given that the unwed father precedents
implicitly support non- exclusive parenthood, resolving the
inconsistency between the Court's explicit statements and implicit
outcomes means recog- nizing that, regardless of their intent, the
Justices ultimately did create precedents that support nonexclusive
parenthood. In short, the Court's recognition that both types of
relationships are im- portant ismore significant than itsrefusal
tovalidate each si- multaneously.Thus, by using these precedents to
frame the fam- ily relations doctrine to accommodate past and
present relation- ships, the doctrine could beused to protect
children and adults by recognizing multiple parents. Conclusion
Here Ihave argued that recent Supreme Court precedents setthe stage
foranewcustody doctrine-thefamily relations doctrine. The
hallmarkofthis new doctrine isthat it serves the interests of
children and adults simultaneouslyby focusing cus- tody
decision-making on past, present, and future emotional re-
lationships. In other words, the doctrine has the ability to pre-
serve multiple families.Predicating thedoctrine onSupreme Court
precedent increases the legitimacy and the likelihood that the
doctrine is adopted by the states. Widespreadacceptance of the
doctrine would be beneficial precisely because it eliminates the
problems associated with the best interestsand parentalrights
doctrines. Specifically, it accommodatesthe interests of children 0
2002, Vol. 51, No.4 341 This content downloaded from 122.53.19.230
on Tue, 11 Aug 2015 01:48:01 UTCAll use subject to JSTOR Terms and
Conditionsand adults simultaneously. The family relations
doctrinecan ac- count for the psychological attachmentsofchildren
and adults because it emphasizes emotional relationships over
biological re- latedness. It also promotes the idea ofnonexclusive
parenthood because it isnot based on winner-take-all concepts and
can pre- serve multiple family units. If accepted on a
widespreadbasis, it must be noted that this doctrine certainly
would not eliminate all problems in custody disputes between
biological and nonbiological parents. Even if accepted
theoretically or ideologically, the idea of multiple par- ents
would not be without problems in implementation. For in- stance,
among divorcing couples with joint legal or joint physical custody,
it can be difficult for the adults to"share" childrenand cooperate
with one another with respect tosuch things as visi- tation times,
vacation planning, holiday get-togethers,disciplin- ary styles, and
soforth. If cooperation isdifficult for twobio- logical parents, it
seems reasonableto assume that child sharing would beevenmore
contentious whensomeofthe adults in- volved are not biological
parents. Although thesesorts of problems are certainly important,
they are not sosevere asto completely preclude the adoption and
implementation ofthe family relations doctrine. The prob- lems
associated with joint custody among divorcing couples are
widelyrecognized; yet, the practice of awardingjoint custody still
predominates (Hess,1986).Moreover, although research finds that
exposure to ongoing conflict between divorced parents ismore
detrimentaltochildren than nocontact with thenon- custodial parent
(seeOpie,1993), much research suggests that
maintainingrelationships with both parents is a crucial factor in
children's adjustment to divorce (Amato & Gilbreth,1999; Opie;
Simons, Whitbeck, Beaman, & Conger, 1994; Wall & Amadio,
1994). We should expect that in the context of biological versus
nonbiological disputes, maintainingrelationships with both sets of
parentsgenerally would be beneficial to the child, despite the
potential problems associated with multiple families. Implementing
the family relations standardmeans getting family lawyers and
family court judges to utilize this doctrine. The case analysis
here can serve as the catalyst in this process. Lawyers and judges
can use the logic outlined in this article to craft an argument
incourt that would introduce the family re- lations doctrine. From
there, reliance on precedent, debate over the new doctrine, and
continued adaptation ofthe doctrine will help to spur its adoption
in other courts and states. References -.(1963). Alternativesto
"parentalrights" in child custody disputes involving third parties.
Yale Law Journal, 73,151-170. Ainsworth, M. (1962). The effects of
maternal deprivation: A review of findings and controversy in the
context of research strategy. In Deprivationof maternal
care:Areassessment of its effects (Public Health Papers No. 14).
Geneva: World Health Organization. Ainsworth, M. D. (1989).
Attachments beyond infancy. American Psychologist, 44,709-716.
Amato, PR., & Gilbreth,J. G. (1999). Nonresidentfathers and
children's well- being: A meta-analysis. Journal of Marriage and
the Family, 61,557-553. Bartlett, K. T. (1984).Rethinking
parenthood asan exclusivestatus: The need for legal
alternativeswhen the premise ofthe nuclear family has failed. Vir-
ginia Law Review, 70, 879-963. Boskey, J. B. (1995). The swamps of
home: A reconstructionof the parent-child relationship.
Universityof Toledo Law Review, 26,805-853. Bowlby, J. (1969).
Attachmentand loss (Vol1). NewYork: Basic Books. Bowlby, J. (1973).
Attachmentand loss (Vol 2). NewYork: Basic Books. Bowlby, J.
(1980). Attachmentand loss (Vol 3). NewYork: Basic Books. Caban v.
Mohammed,441U.S.380 (1979). Cahn, N.R.(1997).Reframing child
custody decisionmaking. Ohio State Law Journal, 58,1-60. Curtis, C.
(1980). The psychological parentdoctrinein custody disputesbetween
foster parents and biological parents. Columbia Journal ofLaw and
Social Problems, 16,149-192. Davis, P. C. (1987). "Thereis a book
out...": An analysis of judicial absorption of legislative facts.
Harvard Law Review, 100,1539-1604. Dennis T. v. Joseph C.,
82A.D.2d125 (NY App. Div.,1981). Dolgin, J. L.(1993).Just a gene:
Judicial assumptions about parenthood. Uni- versity ofCalifornia
Law Review, 40,637-694. Eagle, R. (1994). The separationexperience
ofchildren in long-term care: The- ory, research and implications
for practice. American Journal ofOrthopsy- chiatry, 64, 421-434.
Erickson, E. (1963).Childhood and society. NewYork: Norton. Forman,
D.L.(1994).Unwed fathers and adoption: Atheoretical analysis in
context. Texas Law Review, 72, 967-1045. Goldstein, J., Freud,
A.,&Solnit, A.(1973).Beyond the best interests ofthe child.
NewYork: Free Press. Griswold v.Connecticut,381 U.S. 479(1965).
Guggenheim, M.(1983).The political and legal implications ofthe
psycholog- ical parentingtheory. Review of Law and Social Change,
12,549-555. Henry, V. L. (1993). A tale ofthree women: A survey of
the rights and respon- sibilities ofunmarriedwomen who conceive by
alternativeinsemination and amodel for legislative reform. American
Journal of Law and Medicine, 19, 285-311. Hess,PM.(1986).Promoting
accesstoaccess with divorcing parents. Social Casework, 67,594-604.
Hill,J. L. (1991).What does it mean to bea "parent"? The claim of
biology asthe basis for parental rights. NewYork UniversityLaw
Review, 66,353- 420. In InterestofB.G.C., 496N.W.2d 239,(IA S.Ct.,
1992). In re Adoption of Baby E.A.W,658So.2d 961(FL S.Ct., 1995).
In re Marriage of Buttrey, 538 N.W.2d 322(IA S.Ct., 1995). In re
Townsend's Custody, 413N.E.2d 428(IL App. Ct., 1980). Kaas, C.W.
(1996).Breaking up a family or putting itback together again:
Refining the preference infavor oftheparent inthird-partycustody
cases. Williamand Mary Law Review, 37,1045-1136. Kazmierazakv.
Query, 736So.2d106 (FL App. Ct., 1999). Khaleque, A., &
Rohner,R. (2002). Perceived parentalacceptance-rejectionand
psychological adjustment:A meta-analysis ofcross-culturaland
intracultural studies. Journal of Marriage and Family, 64,54-65.
Kulan v. Anderson, 20N.E.2d 987(IL App. Ct., 1939). Lamb, M.
(1977). Father-infantand mother-infantinteractionin the first year
of life.Child Development, 48,167-185. Lehr v.
Roberston,463U.S.248(1983). Matter of Adoption ofMale M, 76
A.D.2d839 (NY App. Div.,1980). McCarthy,EB. (1988). The confused
constitutionalstatus and meaning of pa- rental rights. Georgia Law
Review, 22,975-1033. Meyer v. Nebraska, 262U.S. 390(1923). Michael
H. v. Gerald D., 491U.S.110 (1989). Northlandv.Starr,581N.W.2d
210(IA S.Ct., 1998). O'Keefe, J. G. (1991). The need to consider
children's rights in biological parent v. third party custody
disputes. Chicago-Kent Law Review, 67,1077-1105. Opie,
A.(1993).Ideologies of jointcustody. Family andConciliation Courts
Review, 31,313-326. Petition ofKirchner,649N.E.2d 324(IL S. Ct.,
1995). People exrel. Dizney v. Witt, 324 N.E.2d 433(IL App. Ct.,
1975). Pierce v.Society ofSisters, 268 U.S.510 (1925). Prince v.
Massachusetts,321 U.S.158 (1944). Quilloin v. Walcott,
434U.S.246(1978). Richards, J. L.(1992).The natural parent
preference versus third parties: Ex- panding the definition
ofparent.Nova Law Review, 16, 733-766. Rosenstein, D.S.,&
Horowitz, H.A.(1996).Adolescent attachmentand psy- chopathology.
Journal ofConsultingand Clinical Psychology, 64,244-253.
Ross,L.E.(1995).Reconceptualizing marital status asacontinuum
ofsocial attachment.Journal of Marriage and the Family, 57,129-140.
Salthe, E.P. (1990). Would abolishing the naturalparent preference
in custody disputes be in everyone's best interest?Journal of
Family Law, 29,539-548. Santosky v.Kramer,455U.S.745(1982). Simons,
R. L., Whitbeck, L. B., Beaman, J., & Conger,R. D. (1994). The
impact ofmothers' parenting, involvement bynonresidential fathers,
and parental conflict onthe adjustmentofadolescent children.
Journal of Marriage and the Family, 56,356-374. Smith,
S.H.(1978).Psychological parents vs.biological parents: The courts'
response tonewdirections inchildcustody dispute resolution. Journal
of Family Law, 17, 545-576. 342 FamilyRelations z 0 u *w0 This
content downloaded from 122.53.19.230 on Tue, 11 Aug 2015 01:48:01
UTCAll use subject to JSTOR Terms and ConditionsStanley v.
Illinois, 405U.S.645 (1972). Taub,N. (1984). Assessing the impact
of Goldstein,Freud,and Solnit's proposals: An introductory
overview. Review of Law and Social Change, 12, 485-494. Visconti,
R. (1988). The legal relationship of a nonbiological father to his
child: Amatterof equity. Universityof Detroit School of Law,
66,97-125. Wall, J.C.,& Amadio,C. (1994). An integrated
approach tochild custody evaluation: Utilizing the "best interest"
of the child and family systems frame- works. Journal of Divorce
and Remarriage, 21(3-4), 39-57. Waters,E., & Noyes, D.M.
(1983). Psychological parenting vs. attachmentthe- ory: The child's
best interests and the risks ofdoing the right things for the wrong
reasons. Review of Law and Social Change, 12,505-515. Woodhouse,
B.B.(1992)."Who owns the child?": Meyer and Pierceand the child as
property. Williamand Mary Law Review, 33, 995-1122. Woodhouse,
B.B.(1994)."Out ofchildren's needs,children's rights": The
child'svoiceindefining the family. Brigham Young University Journal
of Public Law, 8,321-341. m 0 0 2002, Vol. 51, No.4 343 This
content downloaded from 122.53.19.230 on Tue, 11 Aug 2015 01:48:01
UTCAll use subject to JSTOR Terms and Conditions