In his 1988 book Silent Revolution, Herbert Jacob described how one of the most significant changes to family law in the 20th century, no-fault divorce, began in California and spread through the states with very little public debate or controversy. This remarkable transformation was presented, and largely accepted, as routine policymaking in the domain of legal experts.
Similarly, a revolution in the legal understanding of parenthood seems to have quietly begun with little or no public debate or discussion. This dramatically transformative development is the statutory recognition of “de facto” parenthood — the notion that an unrelated individual (usually the unmarried partner of a biological parent, but potentially any adult) can be designated as the legal “parent” of a child by virtue of an agreement with a biological or adoptive parent, or even just a relationship with the child. In some cases, three or more people may be designated “parents” of the same child. While a handful of state courts have endorsed the idea in the context of disputes between same-sex couples jointly raising children, not until very recently has a legislature endorsed it.
This year, the District of Columbia Council passed a law allowing biological parents’ registered domestic partners to be presumed parents, and to be listed as such on the children’s birth certificates. The law also allows a person to be legally designated a parent if he consents in writing to the artificial insemination of his partner, or if he “hold[s] out” the child as his own—that is, presents the child as his to others. (D.C. already had a law allowing people to sue for child custody if they could show they had acted as “de facto” parents (D.C. Code 16-831.01).)
Then, last month, the Delaware legislature went even farther when it enacted legislation giving state courts the ability to designate a non-parent as a “de facto” parent (with all the legal ramifications of parenthood) as long as the biological parent of a child “fosters” a “parent-like relationship” between the non-parent and the child, and as long as the “de facto” parent has acted like a parent and bonded with the child in a way that is “parental in nature.”
The Delaware law completely untethers legal parentage from biology, marriage, adoption, and even the relationship between the adults who are the child’s legal “parents.” It also abandons the binary nature of legal parenthood by allowing three or more adults to be designated “parents” of a child at the same time.
Like the no-fault revolution, de facto parenthood has its boosters, and they seem to be increasingly influential. Prof. Nancy Polikoff, who advocates the erasure of legal distinctions between households based on marriage and those based on other arrangements, has written extensively and approvingly of these developments and suggests that they ought to be more widely adopted. The prestigious American Law Institute has also endorsed the “de facto” parent idea in the context of the law regarding family breakups.
These changes, however, are radical. The default rules for establishing legal parenthood — which were nearly universally recognized until now — recognize individuals as parents based on (1) biological parenthood, (2) marriage to a parent, or (3) adoption. These clear laws advance the interests of children to know and be raised by their biological parents whenever possible. The one significant exception, adoption, largely imitates the biological mother-father model, thus allowing a child who cannot be raised by his own parents to at least be raised by a mother and father. By limiting the number of people who can claim parental authority, the default rules promote stability and consistency for children.
Existing law also ensures that when natural parents transfer their legal rights, there are “bright lines” governing the process. Thus, parental rights are only terminated when there is clear evidence of unfitness, or when a parent voluntarily relinquishes them through a formal procedure like adoption (including adoption by stepparents).
These rules also enhance children’s best interests because a biological tie between parents and children “increase[s] the likelihood that the parents would identify with the child and be willing to sacrifice for that child, and it would reduce the likelihood that either parent would abuse the child,” as Sara McLanahan and Gary Sandefur wrote in Growing Up with a Single Parent. It is clear that living with a cohabiting couple increases risks of abuse and maltreatment for children, and that unrelated males living with children are more likely to abuse those children.
It is also not hard to imagine the chaos likely to result when the relationship between three or more “de facto” parents breaks up and courts are called upon to dole out parental rights and responsibilities to each person. Children have a hard enough time navigating between two worlds after divorce. Imagine the difficulty of being shuttled between the homes of a mother, her former partner, a sperm donor, his partner, etc.
Perhaps most fundamentally, these trends treat children as acquisitions, ignoring their needs for relationships with their parents and for substitute arrangements when those relationships are disrupted. The idea of de facto parenthood legally facilitates the creation of motherless or fatherless homes, based not on children’s needs but on adult desires. In adopting these laws, states are saying that parentage can be created by a bargain between two or more adults.
Needless to say, these developments and their philosophical underpinnings should be met with stiff opposition. That is likely only if people are aware such developments are taking place. That has not been the case to this point. As the promoters of “de facto” parenthood begin to take their arguments to other legislatures, there must be a more robust debate and response. Our children deserve at least that much.
– William C. Duncan is director of the Marriage Law Foundation.