Whither the Functional Parent? Revisiting Equitable Parenthood Doctrines in Light of Same-Sex Parents’ Increased Access to Obtaining Formal Legal Parent Status

Equitable parenthood doctrines generally provide rights relating to visitation or custody to an individual who has functioned as a child’s parent, but who is not recognized as a formal parent under existing law. These doctrines have played an essential role in protecting non-biological parents raising children within same-sex relationships, a group which historically has been excluded from the traditional avenues to establishing formal legal parent status based upon biology, marriage, and adoption. Over the past thirty years, a number of jurisdictions have adopted equitable parenthood doctrines to avoid the significant harm to children and unfairness that result from treating non-biological parents raising children within same-sex relationships as legal strangers to their children. In recent years, however, formal avenues to establishing legal parent status based upon marriage and adoption increasingly have been extended to non-biological parents raising children within same-sex relationships. While these developments are laudable steps in protecting LGBT families, they leave the future of equitable parenthood doctrines in question. Courts and legislatures may conclude that the increasing expansion to non-biological parents in same-sex relationships of formal avenues to establishing legal parent status means that equity no longer requires application or adoption of equitable parenthood doctrines. In fact, in cases involving same-sex parents, several courts have already cited as a justification for declining to adopt or apply equitable parenthood doctrines the availability of a formal avenue through which the individual seeking parental rights could have established legal parent status. This article argues that it would be a serious mistake for courts and legislatures to abandon equitable parenthood doctrines. Regardless of the increased availability to same-sex parents of formal avenues to establishing legal parent status, equitable parenthood doctrines will remain essential in promoting one of family law’s most important goals: protecting the best interests of children