Troxel Revisited: A New Approach to Third-Party Childcare

This article will first explore the new de facto parent state laws originating in both statutes and cases. These laws often limit current parental decisionmaking about childcare due to an earlier conscious or implicit ceding of parental authority. The article will then examine current third-party childcare laws, including those specially addressing stepparents and grandparents. The analysis will show that such laws typically do not comparably limit current parental decisionmaking due to earlier ceding of parental authority, making third-party childcare more difficult because of requirements like harm or potential harm to the child. Finally, the article suggests a new approach to third-party childcare founded on a justifiable diminution of parental rights due to earlier ceding by existing parents that better serves children and third parties with preexisting substantial relationships without infringing unduly upon the liberty interests of parents in the care, custody and control of their children. The analysis considers whether such an approach should be employed for all third parties, or just for certain third parties like stepparents or grandparents