Undeserved Trust: Reflections on the ALI\u27s Treatment of De Facto Parents

In its PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION, the American Law Institute (ALI) proposes sweeping changes in the legal conception of parenthood. One such change would confer custody and visitation rights on a live-in partner of a legal parent who shared caretaking responsibility for a child for two or more years. This proposal to give “parental rights” to “de facto parents” necessarily limits the prerogative of legal parents to decide who comes into contact with their child. Under the ALI’s proposed “approximation” standard, moreover, de facto parents are presumptively entitled to a share of custody that “approximates” the de facto parent’s caretaking during the intact relationship, absent an exception for departing from that presumption, such as unworkability. Together, these proposals would significantly enlarge the continuing contact that such parent-figures now have with children under state law. Although the ALI is engaged in an admirable undertaking – to provide children with enduring contact with, in some cases, the “only father [a] child ha[d] known” – the drafters assume, without substantiation, that continuing contact between a child and the former live-in partner of the child’s parent is an unadulterated good. However, by designating more and more adults as “parents” to whom custodial responsibility may be given, the ALI glosses over significant differences in the protective capacities of legal parents and other caretakers, as well as their desires to exploit children. Although some children may be made better off by the continued presence of de facto parents, their gain comes at a cost. Other children are likely to experience punishing physical abuse, sexual abuse or neglect, hastened in part by the fact that such contact occurs outside the protective presence of the child’s legal parent. Just as the downside of the ALI proposals are much greater than the drafters assume, the upside is not nearly as great as one might initially suspect. A substantial body of new social science research demonstrates that non-biological parents, whether married or cohabitating, do not invest as heavily in their partner’s children as biological parents do, nor do children experience outcomes from such relationships that are as positive as those experienced by biological children. This is not to say that individual children cannot benefit from the continuance of a central relationship in that child’s life. It is to say, however, that the gains to all child encompassed by these proposals may be less than assumed by the drafters. Before we grant substantially enlarged parental rights to live-in partners who shared equal caretaking duties for a child for as little as two years, we must do more than simply posit good outcomes. Rather, policymakers, courts and legislators should sum these probable effects, good and bad, to evaluate whether this new approach is, on balance, a net good. Before decisionmakers implement the ALI proposals, they should be convinced that the ALI has met its burden of demonstrating that this extension and substantial enlargement of parental rights will benefit children more than it harms them