The Quasi-Parent Conundrum

Michael Higdon

Abstract

Although family law is very much concerned with legal parentage and its attendant rights, children are much more concerned with maintaining relationships with those who care for them, regardless of whether that person is a legal parent or merely someone functioning as one. What happens though if the child’s legal parent attempts to banish the quasi-parent from the child’s life? Doing so can be extremely damaging to the child. Nonetheless, parents do possess a constitutional right to make decisions about how to rear their children, including who may have access to the child. Trying to strike a balance between protecting the child yet also safeguarding the parent’s right is a daunting task. The Supreme Court has provided little guidance on this issue having issued only one opinion on the subject, Troxel v. Granville, and even it only obliquely deals with the subject of quasi-parenthood. Still, the states have relied on Troxel to craft a number of different approaches to the challenging question of quasi-parenthood.As Troxel nears its twentieth anniversary, however, a problem has emerged. Specifically, in implementing Troxel, the states have by and large treated the traditional nuclear family model as normative. This approach is problematic for two reasons. First, since Troxel was decided, the nuclear family has changed drastically. From the legalization of same-sex marriage, to the increase in divorce, cohabitation, and remarriage, fewer and fewer children are finding themselves raised by their two legal parents. Second, for a significant portion of the American population, including racial and ethnic minorities, the nuclear family model has never represented the way in which they typically structure their families, with children often being reared by members of the extended family. Thus, by premising the law of quasi-parenthood on the outdated and unrealistic nuclear family model, more and more children are unable to avail themselves to the protections the law of quasi-parenthood was intended to provide. This Article traces the history of quasi-parenthood, analyzing how the law has evolved into a current practice that is, much to the harm of American children, both short-sighted and under inclusive. The Article concludes with concrete suggestions for change—changes that will promote a legal standard that is less discriminatory and more reflective of the contemporary American family.