Outsiders and Outliers: What's Left of the Family?
John Dewitt Gregory
INTRODUCTION
The brief Introduction will lay out the scope of these remarks and how the issues that will be examined relate to defining the family. A critical element of the definition, traditionally and in litigation in this area, is a respect for privacy, and especially family autonomy and parental authority, which American law has protected for several generations. More particularly, I shall discuss the rights of fit natural parents to be free, for the most part, from state intervention in relationships with their children. Just as the law afforded significant constitutional protection to parental rights, the common law neither countenanced or contemplated intervention in parent-child relationships by persons who were not related by blood.
Here, there will be a brief treatment of the way in which state courts have reacted to claims of entitlement to visitation or custody by outsiders. A number of commentators, and a few courts have endorsed child visitation by outsiders who have no legal relationship with the children with whom they seek visitation. Those asserting such claims, include grandparents, stepparents, “co-parents,” and, on occasion, foster parents. The claimants have asserted, with some success, that they are de facto parents, parents by estoppel, psychological parents and the like. Alison D., decided by the New York’s highest court, is arguably the leading case denying rights to “co-parents,” At the other end of the spectrum is In re Custody of H.S.H.-K, the leading case in opposition to Alison D. and like decisions, recognizing visitation rights to persons not protected by either statutory law or earlier case law.
We shall next turn to the similar state of confusion with respect this issue in state courts that have respected or denied the claims of grandparents seeking to intrude upon parental authority, exemplified by New York cases, granting rights over the objection of intact families, and opinions in several other states that are either consistent or inconsistent with the New York view.
I shall next consider the several opinions in Troxel v. Glanville, examining what the Court has actually determined with respect to grandparent visitation; and how significant the case is likely to be in the future, not only with respect to grandparent visitation, but also other varieties of visitation claims by third parties. One may view the case as simply a reiteration of principles of family autonomy and parental authority that the Court and a number of state courts have reaffirmed since the early twenties, or as a decision that will have a strong, or indeed radical impact on both statutory and case law relating to visitation claims by legal strangers.
Of course, there is presently no reliable answer with respect to the impact of Troxel on state statutes when tested against it, and on case law in the states. A number of courts have spoken, however, variously reaffirming their views expressed in earlier cases that have subjected third party visitation cases to constitutional scrutiny, both state and federal. Accordingly, I will identify the jurisdictions, and summarize cases in which courts have (1) reaffirmed earlier holdings finding statutes constitutional; (2) newly found state statutes to be unconstitutional or determined that the applicable stautes are not affected in light of Troxel.
What is the relevance of the Uniform Parentage Act and the recommendations in the A.L.I. Family Dissolution Project.