Parenthood in a Time of Transition


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1Parenthood in a Time of Transition:Tensions Between Legal, Biological, and SocialConceptions of ParenthoodDavid D. Meyer*For at least four decades, family law in the
United States has been undergoing amost dramatic transformation. Fundamental attributes of family life and organization –some long considered its very defining elements – have been subject to skepticalreexamination. Gender roles within the family, once rigidly enforced by law, have beendiscarded, at least formally. Marriage, long exalted as “the foundation of the family andof society,”1is no longer the unquestioned gateway to family creation. Divorce, oncestrictly regulated and stigmatized through legal rules requiring the assignment of fault, isnow freely available and socially unremarkable.Yet, in this roiling sea of change, the idea of parenthood stood out as an island ofrelative calm. Laws governing the parent-child relationship were updated during thesedecades, to be sure, sometimes in very important respects. Unwed fathers, for example,are no longer categorically disregarded by the law.2Rules governing custody disputeshave moved towards greater, though not perfect, gender equality.3But, for the most part,*Professor of Law, University of Illinois College of Law. Many thanks to Harry Krause for very insightfulcomments and for his generosity in collaborating on this and many other projects.1Maynard v. Hill, 125 U.S. 190, 205 (1888); see also Zablocki v. Redhail, 434 U.S. 374, 384 (1978);Andrews v. Andrews, 188 U.S. 14, 30 (1903).2See Harry D. Krause, Illegitimacy: Law and Social Policy 1-8 (Bobbs-Merrill 1971); Katharine K. Baker,“Bargaining or Biology?: The History and Future of Paternity Law and Parental Status, 14 Cornell J. L. &Pub. Pol’y 1, 6-12 (2004).3See Julie E. Artis, “Judging the Best Interests of the Child: Judges’ Accounts of the Tender YearsDoctrine,” 38 Law & Soc’y Rev. 769 (2004) (concluding, based on interviews with judges, that most judgescontinue to apply a preference for mothers despite the adoption of formally gender-neutral custodystandards).


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2the law of parenthood proceeded on the same fundamental assumptions that had shaped ita century or more before. Parenthood was understood to be largely a natural relationfounded upon biological reproduction, and legal status as a parent followed easily fromrecognition of that natural fact – or, in the case of adoption, from the formal creation of asubstitute relation designed to replicate as closely as possible the biological original.4Recently, however, the changes sweeping over the rest of family law have caughtup to parenthood as well. Biology is increasingly called upon to share its privilegedstatus as the foundation stone of parenthood with caregiving and other social values.Legal parenthood without genetic connection, marriage, or adoption is now a reality inseveral U.S. states. Proposals to expand the numerical boundaries of parenthood, so thata child might have at once three, four, or even more parents, now carry the imprimatur ofthe United States’ most influential law-reform organization.5Beyond parental identity,the rights and obligations of parenthood are also in flux. As parental identity has becomemore contested, the prerogatives that attend it have inevitably grown less definite. In stepwith the law’s broadening idea of parenthood, there is pressure to dilute traditionalparental prerogatives by spreading them more thinly among the expanding circle ofadults.6And, just as the law of parental prerogative has softened to accommodatemultiple caregivers, the law of parental obligation has stiffened, with courts andlegislatures resorting to ever more aggressive means of child-support enforcement whileextending support duties to new parent figures formerly thought to be outside the circle offamily.4See Elizabeth Bartholet, Family Bonds: Adoption, Infertility, and the New World of Child Protection(1999); Naomi Cahn, “Perfect Substitutes or the Real Thing?,” 52 Duke L.J. 1077 (2003).5See American Law Institute, Principles of the Law of Family Dissolution § 2.03 (Matthew Bender 2002).6See Margaret F. Brinig, “Troxel and the Limits of Community,” 32 Rutgers L.J. 733 (2001); Emily Buss,“’Parental’ Rights,” 88 Va. L. Rev. 635 (2002).


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3At the same time, there are significant forces pushing back in the oppositedirection. While recent developments have mostly downplayed genetic ties in assigningparentage, the availability of DNA testing has led to new and surprising emphasis onbiology in defining parenthood in some contexts. While legislators have demonstratednew flexibility in their approach to defining and regulating family relations, recent courtrulings have limited their innovation by invoking constitutional doctrines of privacyrooted partly in traditional conceptions of family.7The settling point for the recentchanges in the U.S. law of parentage remains unclear, but it is plain enough that socialand legal conceptions of what it means to be a “parent” are now in play as never before.I. THETRADITIONALRULES: CLARITY IN THEASSIGNMENT ANDRIGHTS OFPARENTAGETraditionally, the rules governing the assignment of parental status were relativelyclear. Parentage rested primarily on the establishment or presumption of a procreative tiewith the child. For mothers, this was typically a straightforward matter and legalmotherhood followed childbirth as a matter of course.8For fathers, whose geneticconnection was not as apparent, the law did the best it could to infer biological paternitythrough a network of presumptions and defenses. The law traditionally presumed, forinstance, that a child born to a married woman was fathered by her husband. The7See Troxel v. Granville, 530 U.S. 57 (2000) (holding unconstitutional application of statute permittingcourt-ordered child visitation by grandparents); Sean H. v. Leila H., 783 N.Y.S.2d 785, 788 (Sup. Ct. 2004)(relying on Troxel to adopt a “narrow definition of ‘parents’ for the purpose of standing in custody andvisitation cases”); In re Nelson, 825 A.2d 501, 503 (N.H. 2003) (holding that state constitution would notallow expanding the definition of “parents” to cover non-traditional caregivers); Richard F. Storrow, “ThePolicy of Family Privacy: Uncovering the Bias In Favor of Nuclear Families in American ConstitutionalLaw and Policy Reform,” 66 Mo. L. Rev. 527 (2001).8See Nguyen v. INS, 533 U.S. 53, 62 (2001); Lehr v. Robertson, 463 U.S. 248, 260 n.16 (1983); MarshaGarrison, “Law Making for Baby Making: An Interpretive Approach to the Determination of LegalParentage,” 113 Harv. L. Rev. 835, 912 (2000) (observing that “[b]ecause pregnancy and birth arerelatively public and undisputed, the law has rarely confronted the question of legal motherhood at all”).


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4presumption was a strong one and could be overcome only in limited circumstances.9English law once required proof that marital intercourse during the critical period wasimpossible, as by the absence of the husband “beyond the four seas,” a poetic way ofsaying that the man was beyond the reach of both England and the child’s mother.10InAmerican jurisdictions, the requisite improbability could be established if the husbandand wife were separated at the probable time of conception under circumstancesestablishing the husband’s “non-access” to his wife.11When there was maritalcohabitation at the likely time of the child’s conception, only the advent of blood-typingand, later, DNA evidence made it possible to rebut the presumption of legitimacy.12By permitting rebuttal based on proof that the husband could not have been thebiological father, the marital presumption was plainly grounded in assumptions about thehusband’s likely procreative role. Marriage supported the assignment of paternity to thehusband because it supported an inference that he was the biological father, though hewas very likely also to be the child’s social father. As Ira Ellman has pointed out, in anage when scientific limitations usually made it impossible for a husband to disprove hisbiological paternity, the law rarely encountered conflicts between biological and socialconceptions of parenthood.13Only later, when scientific proof of paternity exposedthese conflicts in stark relief and forced hard choices, was the marital presumption9See Baker, supra note 2, at 12-13; Ira Mark Ellman, “Thinking About Custody and Support inAmbiguous-Father Families,” 36 Fam. L.Q. 49, 51-54 (2002).10See Michael H. v. Gerald D., 491 U.S. 110, 124-25 (1989); Homer H. Clark, Jr., The Law of DomesticRelations in the United States 152 (2d ed. 1988).11See, e.g., In re Marriage of Schneckloth, 320 N.W.2d 535, 536-37 (Iowa 1982); L.F.R. v. R.A.R., 378N.E.2d 855, 856 (Ind. 1978); see generally Michael Grossberg, Governing the Hearth: Law and the Familyin Nineteenth-Century America, at 200-202 (1985).12Compare, e.g., L.F.R., 378 N.E.2d at 856 (refusing to permit husband to rebut presumption of paternitybased merely on testimony that he and his wife did not engage in sexual relations during likely period ofconception), with Minton v. Weaver, 697 N.E.2d 1259 (Ind. App. 1998) (finding marital presumption ofpaternity overcome where DNA test established 99.97% likelihood of genetic paternity in another man).13See Ellman, supra note 9, at 52


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5sometimes construed frankly to protect marriage or social parenthood over biology.14InMichael H. v. Gerald D.,15for example, a man who had indisputably fathered a childduring an affair with a married woman was barred from seeking to establish himself as alegal father over the objection of the woman’s husband.16The state’s policy of treatingthe marital presumption as conclusive, the Supreme Court held, was justified by itsinterest in protecting both marriage and the child’s established bonds within the intactmarital family from external disruption.When the mother and putative father were not married, the assignment ofpaternity was more complicated. Before the 1970s, unmarried fathers had only the mosttenuous legal rights concerning their children.17Although the U.S. Supreme Court hadestablished by 1965 that fathers of children born within marriage were constitutionallyentitled to notice of any adoption proceeding that might extinguish their paternity,18manystates continued to exclude fathers of non-marital children from legal determinations oftheir future.19Thus, unwed fathers typically were not permitted to wrest custody fromthe mother, nor were they legally entitled to object if the mother decided to place thechildren for adoption by new parents. This wholesale exclusion of unwed fathers endedafter the Supreme Court’s 1972 decision in
Stanley v.
Illinois,20recognizing that at leastsome unmarried fathers have constitutionally protected interests in relationships withtheir children. Subsequent decisions allowed that certain men – those who had failed to14See June Carbone & Naomi Cahn, “Which Ties Bind?: Redefining the Parent-Child Relationship in anAge of Genetic Certainty,” 11 Wm & Mary Bill of Rights J. 1011, 1019-20 (2004).15491 U.S. 110 (1989).16See id. at 124-32.17See Krause, supra note 2, at 9-58.18Armstrong v. Manzo, 380 U.S. 545 (1965).19See Baker, supra note 2, at 6-7; David D. Meyer, “Family Ties: Solving the Constitutional Dilemma ofthe Faultless Father,” 41
Ariz. L. Rev. 753, 758-59 (1999).20405 U.S. 645 (1972).


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6do what they could to “develop a relationship with [their] offspring” – could besummarily disregarded as potential fathers.21But a man who “grasps that opportunityand accepts some measure of responsibility for his child’s future,” as by pitching in tomeet his child’s financial and emotional needs, is constitutionally entitled to “enjoy theblessings of the parent-child relationship and [to] make uniquely valuable contributionsto the child’s development.”22As a result, the ability of unwed fathers to establish theirpaternity today often depends upon whether they took prompt action to assume legalresponsibility for their children or instead dawdled while others changed diapers andbought formula.23Although non-marital children were once brutally stigmatized by legal rulesclassifying them as “illegitimate,” today U.S. Supreme Court decisions and the UniformParentage Act have all but eliminated the vestiges of legal discrimination.24The UniformParentage Act, now formally adopted in nearly half the states and embraced in modifiedform in many more, was first promulgated in 1973 by the National Conference ofCommissioners on Uniform State Laws (NCCUSL).25Its guiding principle is fullequality for all children in their legal relationship with both parents, whatever their21Lehr v. Robertson, 463 U.S. 248, 261-62 (1983); see also Quilloin v. Walcott, 434 U.S. 246 (1978);Caban v. Mohammed, 441 U.S. 380 (1979). For a fuller account of these cases, see Meyer, Family Ties,supra note 19, at 758-69; Laura Oren, “The Paradox of Unmarried Fathers and the Constitution: Biology‘Plus’ Defines Relationships; Biology Alone Safeguards the Public Fisc,” 11 Wm. & Mary Women’s L.J. 47(2004).22Lehr, 463 U.S. at 261-62.23Professor Katharine Baker argues that “the most important factor in determining whether a genetic fatherwill be entitled to constitutional protection of his parental rights is his relationship with the mother.”Baker, supra note 2, at 34. She contends that unwed fathers prevail where the evidence suggests animplicit agreement with the child’s mother to share parental rights. Id.24See Harry D. Krause, “Equal Protection for the Illegitimate,” 65 Mich. L. Rev. 477 (1967); Harry D.Krause, “Legitimate and Illegitimate Offspring of Levy v. Louisiana: First Decisions on Equal Protectionand Paternity,” 36 U. Chi. L. Rev. 338 (1969); Laurence C. Nolan, “’Unwed Children’ and Their ParentsBefore the United States Supreme Court From Levy to Michael H.: Unlikely Participants in ConstitutionalJurisprudence,” 28 Cap. U. L. Rev. 1 (1999).25See Harry D. Krause, “The Uniform Parentage Act,” 8 Fam. L.Q. 1 (1974); Harry D. Krause, “AProposed Uniform Act on Legitimacy,” 44 Tex. L. Rev. 829 (1966).


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7parents’ marital status. The Act emphasizes that the right in question belongs to thechild, whereas traditional paternity acts had viewed the action as the right of the mother.In 2000, NCCUSL adopted a successor act to reflect substantial changes that haveoccurred in this area – including advances in the scientific determination of parentage –since the 1970s. The Act includes unchanged many of the core provisions of the 1973Act, while also adding entirely new sections providing for the establishment of paternitythrough voluntary, non-judicial acknowledgments and through the use of paternityregistries. In 2002, the new Parentage Act was amended to respond to objections that ithad not gone far enough to equalize the treatment of marital and non-marital children.26Both versions of the Uniform Parentage Act abandon the concept of legitimacy.Marriage between the parents remains a relevant and important indication of probablebiological paternity, but has no further significance in this context. An elaborate networkof presumptions identifies circumstances in which it is more likely than not that aparticular man is the child’s biological father. These presumptions cover the (1) the basicsituation in which the parents are married; (2) the case in which the man and the child’smother have attempted to marry prior to the child’s birth but the marriage is void orvoidable; (3) the case in which the man and the child’s mother have married or attemptedto marry after the child’s birth and the father has given some additional indication ofrecognizing the child; (4) the case in which the man, regardless of marriage, receives thechild into his home and openly holds the child out as his own; and (5) the case in whichthe man acknowledges his paternity of the child in a formal writing without objection26To date, the revised Uniform Parentage Act has been adopted in Delaware, Texas, Washington, andWyoming. See Linda D. Elrod & Robert G. Spector, “A Review of the Year in Family Law: Children’sIssues Remain the Focus,” 37 Fam. L.Q. 527, 532 (2004).


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8from the mother.27As with the traditional presumption of marital paternity under thecommon law, the main object of the Uniform Act was to identify as the father the manmost likely to have been the biological father of the child.Where there was no pretense of a genetic connection, traditional law providedonly one route to parenthood: formal adoption. If parentage was not founded on blood(or the presumption of blood ties arising from marriage or other circumstances), then itmust be founded on paper in the form of an adoption decree.28And, even in expresslyrecognizing a path to parenthood outside of biology, adoption law retained an implicitpreference for biological parenthood. In myriad ways, the law often reflected anassumption that adoptive parents were second-best “stand-ins” in circumstances wherethe “real” – i.e., biological – parents were simply unavailable.29At one time, it wascustomary for judges and caseworkers to place great importance on “matching” a child toprospective adoptive parents who shared the same ethnic, religious, and culturalbackground.30Considerable effort was expended to ensure that the child physicallyresembled the adoptive parents, so that outsiders (or even the child) would not suspectthat the family had been created by adoption.31Although adoptive parents were accorded27See Uniform Parentage Act § 204 (2002); Uniform Parentage Act § 4 (1973).28Cf. Catherine J. Ross, “Families Without Paradigms: Child Poverty and Out-of-Home Placement inHistorical Perspective,” 60 Ohio St. L.J. 1249 (1999) (describing traditional bright-line distinctionsbetween adoption and foster care). This, of course, has been the prevailing rule in many other legal systemsas well. See, e.g., Harry D. Krause, “Creation of Relationships of Kinship,” IV Int’l Encycl. of Comp. L.73-95 (1976); Miglena Baldjieva, “The Concept of Parental Responsibility in Bulgarian and English Law,”in Perspectives for the Unification and Harmonisation of Family Law in Europe 402 (Katharina Boele-Woelki ed. 2003); Ines Pardo de Carvallo, “Identifying Parentage and the Methods of Proof in the NewChilean Law,” in The International Survey of Family Law 83 (2000); ?ke Saldeen, “Paternity andCustody,” in The International Survey of Family Law 351 (2000) (describing law in Sweden).29See Bartholet, supra note 4; Cahn, supra note 4. Katherine O’Donovan has noted similar assumptions inEuropean law. See Katherine O’Donovan, “’Real’ Mothers for Abandoned Children,” 36 L. & Soc. Rev.347, 368-69 (2002).30See Cahn, supra note 4, at 1148-49.31See Elizabeth Bartholet, “Where Do Black Children Belong?: The Politics of Race Matching inAdoption,” 139 U.
Penn. L. Rev. 1163, 1187-88 (1991).


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9full parental status and rights under the law, identical to those enjoyed by biologicalparents, traditional adoption law and practice nevertheless sometimes implied that thelegitimacy of the adoptive relationship turned in some sense on its ability to mimic abiological one.32Just as the rules traditionally governing the assignment of parental identity wereoften sharp and bright-lined, the law defining the prerogatives of parents was reasonablystraightforward. Most important, parents – whether biological or adoptive – were legallyentitled to custody of their children over the competing claims of non-parents. A parent’sclaim to custody was protected, first, by rules that narrowly limited the standing of non-parents to file suit and, second, by a strong substantive preference for parent custody. Inits strongest form, this preference provides that a non-parent can gain custody only byproving that the parent is wholly “unfit” to care for the child, effectively the samestandard used to terminate parental rights in cases of abuse and neglect.33In its slightlyweaker form, the preference favors parents unless it can be shown that parent custodywould be harmful to the child.34In either case, however, the rules gave strong assuranceto fit parents of their ability to exclude other custodians by casting non-parents as “legalstrangers” to a child.35While the law governing custody disputes between legal parents32See Bartholet, supra note 4; Katarina Wegar, Adoption, Identity, and Kinship (1997); Elizabeth Bartholet,“Beyond Biology: The Politics of Adoption and Reproduction,” 2 Duke J. of Gender & Pol’y 5 (1995).33See e.g., Martin v. Nieman, 2004 WL 1909353 (Ky. App. Aug. 27, 2004); David N. v. Jason N., 596S.E.2d 266, 267-68 (N.C. App. 2004); Evans v. Taggard, 88 P.3d 1078, 1086 (Alaska 2004). To terminateparental rights, due process requires that states prove a parent’s unfitness by clear and convincing evidence.See Santosky v. Kramer, 455 U.S. 745 (1982). Some states use precisely the same standard to determinewhether a parent may be deprived of custody, see, e.g., Evans, 88 P.3d at 1086; Vinson v. Sorrell, 136S.W.3d 465, 468-69 (Ky. 2004), while some others demand that unfitness be proved by only apreponderance of the evidence for purposes of a custody determination, see, e.g., Shurupoff v. Vockroth,814 A.2d 543, 554 (Md. 2003); Pecek v. Griffin, 2002 WL 549940 (Ohio App. Apr. 12, 2002).34See, e.g., In re M.M.L., 900 P.2d 813 (Kan. 1995).35For example, a Nebraska court recently held that a biological father was entitled to custody of histeenaged son against the claim of the boy’s longtime stepfather, despite the fact that the biological father


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10has undergone a series of upheavals over the past four decades – cycling throughpreferences for mothers, primary caregivers, joint custody, and finally settling in mostjurisdictions on an unmodified “best interests of the child” test – the legal preference (insome form) for parents over non-parents has remained relatively stable.II.BLURRINGLINES: FAMILYDIVERSITY AND THENEWPARENTHOODFamily life has changed radically over the last four decades. Indeed, as JusticeO’Connor observed in 2000, recent “demographic changes . . . make it difficult to speakof an average American family.”36It remains true that most people marry, but they aremarrying later in life, for shorter periods, and usually after a period of cohabitation.37Inthe years from 1970 until Justice O’Connor’s writing in 2000, the percentage of menbetween the ages of 25 and 29 years of age who had never married rose from 19% to52%, while that of women climbed from 10% to 39%.38During that same period, thenumber of unmarried couples living together roughly doubled each decade, increasinglyoverall by about 1000%. The linkage between marriage and childbearing, long taken forgranted by most Americans, has weakened substantially. As the stigma associated withunwed parenthood has faded, many more unmarried women are electing – or accepting –parenthood. Even as the birthrate among teenagers fell by 22% over the 1990s, non-marital births among all women increased and now constitute more than a third of allbirths. Partly because of a sharp increase in the number of unmarried, cohabiting coupleshad been entirely absent from the boy’s life until the mother’s death when the boy was 12 years old. SeeEphraim H. v. Jon P., 2005 WL 2347727 (Neb. App. Sept. 27, 2005).36Troxel v. Granville, 530 U.S. 57, 64 (2000).37See National Marriage Project, The State of Our Unions 2005, at 16-18 (Rutgers Univ. 2005).38See Jason Fields, America’s Families and Living Arrangements: 2003, at 12-13 (U.S. Census Bureau2003).


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11rearing children, four out of ten children are now expected to be raised, at least in part, ina cohabiting household.39The traditional ideal of a “nuclear family,” made up of amarried couple raising their children, is fading, down from 40% of all households in 1970to less than a quarter by 2000.40It is probably not too much to say that “[t]he domesticunit in early 21st century America [has become] a crazy quilt of one-parent households,blended families, singles, unmarried partnerships and same-sex unions.”41In recent years, courts and legislators have tried to adapt parentage law to “thechanging realities of the American family.”42But, for the most part, they have done soonly around the edges, by bending traditional doctrine to take account of non-traditional,“parent-like” figures while maintaining the fundamental premises of the older law.43Oneresponse has been to soften the application of the traditional parental preference incustody disputes involving a longtime non-parent caregiver.44In a recent New Jerseycase, for example, a lesbian couple battled over custody of twin children born to one ofthe women during the course of their relationship by way of artificial insemination.45The two women had shared parenting responsibility on essentially equal terms and even“married” one another in a commitment ceremony. When the couple split up and foughtover custody, the New Jersey Supreme Court declined to apply a parental preference infavor of the woman who had given birth to the children:39See National Marriage Project, The State of Our Unions 2001, at 29 (Rutgers Univ. 2001).40See Fields, supra note 38, at 2 (noting that the prevalence of nuclear family households had dropped to23% by 2003).41Siobhan Morrissey, “The New Neighbors: Domestic Relations Law Struggles to Catch Up with Changesin Family Life,” ABA J., Mar. 2002, at 37, 38.42Troxel v. Granville, 530 U.S. 57, 64 (2000).43See Janet L. Dolgin, “An Emerging Consensus: Reproductive Technology and the Law,” 23 Vt. L. Rev.225, 226 (1998).44See “Developments in the Law – Changing Realities of Parenthood: The Law’s Response to the EvolvingAmerican Family and Emerging Reproductive Technologies,” 116 Harv. L. Rev. 2052 (2003); Katharine T.Bartlett, “U.S. Custody Law and Trends in the Context of the ALI Principles of the Law of FamilyDissolution,” 10
Va. J. Soc. Pol’y & L. 5, 41-44 (2002).45See V.C. v. M.J.B., 748 A.2d 539 (N.J.), cert. denied, 531 U.S. 926 (2000).


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12Third parties who live in familial circumstances with a child andhis or her legal parent may achieve, with the consent of the legal parent, apsychological parent status vis-a-vis the child. . . . Where there is aconflict over custody and visitation between the legal parent and apsychological parent, the legal paradigm is that of two legal parents andthe standard to be applied is the best interests of the child.46Courts and legislators elsewhere have arrived at the same result, permitting non-parents who have performed the caregiving functions of a parent standing to seekcustody or visitation against the wishes of a legal parent.47Yet, though usingterms like “de facto parent” or “psychological parent,” these courts have stoppedshort of recognizing these caregivers as true legal parents, and instead havejustified conferring a “parent-like” role over the objections of the true legalparent.48In some other contexts, law has adapted by expanding the boundaries oflegal parenthood itself. In the realm of assisted reproduction, for example, thelaw for several decades now has permitted the conferral of legal parenthoodwithout adoption and without any true pretense of a biological connection. Sincethe Uniform Parentage Act of 1973, the law in most jurisdictions has provided46Id. at 555.47See, e.g., Ariz. Rev. Stat. § 25-415 (2004); Or. Rev. Stat. § 109.119 (2004); Scott v. Scott, 147 S.W.3d887, 896 (Mo. App. 2004) (former partner of lesbian mother overcame parental presumption because shewas “the person who has, for the life [the child] remembers, been his parent”); In re E.L.M.C., 2004 WL1469410 (Colo. App. July 1, 2004) (former partner of lesbian mother was a “psychological parent” withstanding to seek custody); P.B. v. T.H., 851 A.2d 780 (N.J. Super. 2004) (neighbor who had helped to raisechild with custodial aunt’s encouragement was a “psychological parent” with standing to seek custody);48See, e.g., Clifford K. v. Paul S., __ S.E.2d __, 2005 WL 1431514 (W. Va. 2005) (holding that survivinglesbian partner had standing as a “psychological parent” to seek custody of child she had helped raise withher late partner, but that she did not qualify as a “legal parent”); Riepe v. Riepe, 91 P.3d 312, 316-17 (Ariz.2004) (emphasizing, in decision permitting a stepmother to seek visitation on grounds that she had formeda parent-like relationship with child, that “[a] person standing in loco parentis is not a ‘parent,’ does notenjoy parental rights, and therefore does not become an ‘additional parent’”); Melanie B. Jacobs, “MicahHas One Mommy and One Legal Stranger: Adjudicating Maternity for Non-Biological Lesbian Coparents,”50 Buff. L. Rev. 341, 355 (2002); Solangel Moldonado, “When Father (or Mother) Doesn’t Know Best:Quasi-Parents and Parental Deference After Troxel v. Granville,” 88
Iowa L. Rev. 865, 893-97, 910-12(2003).


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13that a child born to a married woman, as a consequence of artificial inseminationfrom a donor other than her husband, is legally the husband’s child, at least solong as the procedure was performed by a licensed physician.49The sperm donoris dealt out of the picture entirely, even though he is known to be the geneticfather of the child.50In 2000, the Uniform Parentage Act was revised again,further expanding the allowance for legal fatherhood by dropping the 1973 Act’slimitation to procedures performed by a licensed physician.51In 2002, the Actwas broadened still further to cover unmarried couples as well, so that now “[a]man who provides sperm for, or consents to, assisted reproduction by a woman . .. with the intent to be the parent of her child, is a parent of the resulting child.”52Courts have embraced the same notion of intentional assumption as thekey determinant of legal parentage in cases involving surrogacy and in vitrofertilization.53In Johnson v. Calvert,54for example, the California SupremeCourt resolved a custody dispute arising out of a surrogacy contract in favor of thegenetic parents over the surrogate who had carried their embryo and given birth tothe child. Although both the genetic mother (i.e., the wife whose egg wasimplanted in the surrogate) and the birth mother (i.e., the surrogate) couldpotentially be considered mothers to the child under California law, the courtconcluded that legal parentage should be assigned to the married couple on theground not of genetics but of intentions: “[S]he who intended to procreate the49See, e.g., Uniform Parentage Act § 5 (1973); Ala. Code § 26-17-21 (2005); Cal. Fam. Code § 7613(2004).50See id.51See Richard F. Storrow, “Parenthood by Pure Intention: Assisted Reproduction and the FunctionalApproach to Parentage,” 53 Hastings L.J. 597 (2002).52Uniform Parentage Act § 703 (2002).53See Dolgin, supra note 43; Storrow, supra note 51.54851 P.2d 776 (1993).


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14child – that is, she who intended to bring about the birth of a child that sheintended to raise as her own – is the natural mother under
California law.”55Along similar lines, the law has moved to permit same-sex couples to raisechildren together through second-parent adoptions or through entry into marriageor a marriage-like union. Courts in roughly half the states now permit same-sexpartners to adopt a child born to or adopted by their partner.56In the smallminority of states which currently permit same-sex marriage, domesticpartnerships, or civil unions, same-sex partners or spouses can avail themselves ofa presumption of parentage based on the traditional marital presumption, thoughwithout of course any supposition that it reflects an inference of biologicalparenthood.57More strikingly, courts have begun to confer legal parenthood in theabsence of an adoption decree, marriage license, or any pretense whatsoever ofgenetic relation. They have done so in the context of assisted reproduction, whereadults without any genetic or biological tie to the child or marital tie to the child’sother parent have been permitted to establish parentage based entirely on theirrole of facilitating conception with the intention of assuming the responsibilities55Id. at 782; see also In re C.K.G., 2004 WL 1402560 (Tenn. App. June 22, 2004) (gestational mother waslegal parent based on her intention to assume the responsibilities of parenthood, despite the lack of anygenetic tie to the child); McDonald v. McDonald, 608 N.Y.S.2d 477 (App. Div. 1994) (same); Perry-Rogers v. Fasano, 715 N.Y.S.2d 19, 24 (App. Div. 2000) (couple whose embryo was mistakenly implantedin another woman should be regarded as the child’s legal parents based on their intent to become parents).56See, e.g., Sharon S. v. Superior Court, 73 P.3d 554 (Cal. 2003); Harry D. Krause & David D. Meyer,“What Family for the 21st Century?,” 50 Am. J. Comp. L. 101, 114 & n.23 (2002).57See Elisa B. v. Superior Court, 117 P.3d 660, 666 (Cal. 2005) (noting that two same-sex partners canestablish parentage of a child born to one of them through registration as domestic partners; California’sdomestic partnership law, Cal. Fam. Code § 297.5(d), provides that “[t]he rights and obligations ofregistered domestic partners with respect to a child of either of them shall be the same as those ofspouses”); Melanie B. Jacobs, “Applying Intent-Based Parentage Principles to Nonlegal LesbianCoparents,” 25 N. Ill. L. Rev. 433 (2005).


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15of parenthood.58They have done the same where unmarried men, through avoluntary acknowledgment of paternity, have knowingly assumed full parentalresponsibility for a genetically unrelated child.59And, finally, they have done itin the context of same-sex couples who undertake together to conceive and raise achild related biologically to only one.60In 2005, the California Supreme Courtheld that both partners in a lesbian relationship can become legal mothers of achild born during their relationship, so long as each voluntarily assumedresponsibility and held the child out as her own.61These decisions, meant to accommodate non-traditional familyarrangements by treating them in the same manner as a more traditional analogue– likening them, for example, to opposite-sex adoptive couples or to marriedcouples seeking to conceive through artificial insemination – together reflectsignificant shifts in the legal understanding of parenthood.62Each placesdiminished importance on genetic or biological connection and looks instead toestablished caregiving or clearly established parenting intention as essential, or atleast co-equal, determinants of parentage. Without any clear sorting of58See In re Marriage of Buzzanca, 72 Cal. Rptr. 2d 280 (Ct. App. 1998); Uniform Parentage Act § 703(2002).59See In re Nicholas H., 46 P.3d 932 (Cal. 2002); Michael Higgins, “Man Ruled Father of Unrelated Boy,”Chi. Trib., Sept. 17, 2004, p. 1 (discussing Illinois trial court judgment). But see Seger v. Seger, 780N.E.2d 855, 857 (Ind. App. 2002) (man’s voluntary acknowledgment of paternity – in the face ofknowledge that he was not the child’s biological father – was “fraudulent” and therefore legallyineffective). See Jayna Morse Cacioppo, Note, “Voluntary Acknowledgments of Paternity: Should BiologyPlay a Role in Determining Who Can Be a Legal Father?,” 38 Ind. L. Rev. 479 (2005).60See Elisa B. v. Superior Court, 117 P.3d 660 (Cal. 2005); Kristine Renee H. v. Lisa Ann R., 117 P.3d 690(Cal. 2005); A.B. v. S.B., 818 N.E.2d 126 (Ind. App. 2004); In re Parentage of L.B., 89 P.3d 271 (Wash.App. 2004).61See Elisa B., 117 P.3d 660.62See generally June Carbone, From Partners to Parents: The Second Revolution in Family Law (2000);Nancy E. Dowd, Redefining Fatherhood (2000).


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16parenthood’s essential determinants, the law is clearly coming to accept a broaderand more fluid conception of what it means to be a parent.III.THEPROBLEM OFCONFLICTS: PRIORITIZINGSOCIAL ANDBIOLOGICALBASES OFPARENTHOODAs law continues to open up new routes to parenthood and discards itstraditional insistence upon bright-line entry markers such as adoption, marriage,or childbirth, courts will inevitably be called upon to prioritize the competingvalues at stake. Should biological connection take precedence over caregivingalone? Should it give way to concerns for marital stability or voluntarypartnership? And whose interests ought to take priority in making thesedeterminations, those of adults or those of children? So far, the law has notsettled on any method for balancing the competing concerns.63Indeed, the lawoften seems to be lurching unwittingly in opposite directions.A. Mixed Messages in the Law of Parent IdentityThe law is clearly not of one mind when it comes to weighing therespective claims of blood, marriage, caregiving, and voluntary assumption ofparental duty in defining the basis of parenthood.64The general trajectory of lawin recent years has plainly been toward a functional understanding of63See Baker, supra note 2; Bartholet, supra note 4.64See Janet L. Dolgin, “The Constitution as Family Arbiter: A Moral in the Mess?,” 102 Colum. L. Rev.337, 341 (2002) (stating that “[e]ven a cursory look at contemporary family law reveals that we do indeedhave ‘both more tradition and more modernity’ – and that almost everyone is confused about theimplications”).


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17parenthood.65And yet in some corners of parentage law, the claims of biologyhave been given new and sometimes surprising weight.Now that genetic fatherhood can be readily and conclusively established,even some commentators disposed to favor recognition of “social” parenthoodhave called for wider or even mandatory DNA testing at the time of a child’sbirth.66Children, they contend, might benefit from early resolution of any doubtabout their genetic lineage, inspiring greater commitment from their fathers andavoiding later attempts to disclaim paternity upon divorce.67This view drawsadditional support from recent scholarship in the field of evolutionary biologysuggesting that parents may tend to invest more in the care of their own geneticoffspring.68Yet, routine DNA testing at birth would plainly reinforce traditionalsocial understandings of parenthood as grounded first and foremost in the geneticconnection.The idea that genetics are the essential determinant of parenthood isexperiencing a parallel resurgence in the law governing “disestablishment” ofpaternity. Traditionally, husbands were permitted to rebut the maritalpresumption of their paternity if they could come forward promptly with evidenceproving that the child was in fact fathered by another man. If a presumed father65See Garrison, supra note 8, at 893; Bartlett, supra note 44, at 5; Developments in the Law – ChangingRealities of Parenthood, supra note 44.66See, e.g., Carbone & Cahn, supra note 14, at 1067-68; Nancy Dowd, “Right from the Start: Parentageand Nurture at Birth,” 14 Wm. & Mary Bill of Rights J. __ (2006); Jane Murphy, “Protecting Children ByPreserving Parents,” 14 Wm. & Mary Bill of Rights J. __ (2006).67See id.68See Carbone & Cahn, supra note 14, at 1022-39; Owen D. Jones, “Evolutionary Analysis in Law: AnIntroduction and Application to Child Abuse,” 75 N.C. L. Rev. 1117 (1997); Robin Fretwell Wilson,“Undeserved Trust: Reflections on the American Law Institute’s Treatment of De Facto ‘Parents,’” inReconceiving the Family: Critical Reflections on the American Law Institute’s Principles of the Law ofFamily Dissolution (R. Wilson ed. 2006); cf. June Carbone & Naomi Cahn, “The Biological Basis ofCommitment: Does One Size Fit All?,” 25 Women’s Rights L. Rep. 223 (2004) (reviewing evolutionaryevidence relating to bonding in adult relationships).


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18did not come to doubt his status as the biological father until some years after thechild’s birth, however, most courts were reluctant to allow the man to abandon hisrole as father.69“The common theme of such cases,” observed the reporters of theAmerican Law Institute’s Principles of the Law of Family Dissolution, “is that thechild’s interests may be jeopardized by allowing a husband who has takenpaternal responsibility for his wife’s children to suddenly disclaim them, leavingthem fatherless financially as well as emotionally.”70Recently, however, a smallbut growing number of courts and legislatures have changed course.71Focusedon the ease with which genetic parentage can now be determined and thecomplaints of men who feel victimized by an obligation to support a child born oftheir wives’ infidelity, these courts and legislatures have moved to allow men todiscard their status as fathers upon proof of genetic non-paternity.72The liberalization of laws permitting disestablishment of paternity mightbe thought to be driven more by concern for the victims of marital infidelity,rather than a conviction about the primary importance of genetics to the idea ofparenthood. Yet, it is hard to square that notion with a similar development in thelaw of third-party standing to attack the marital presumption of paternity.69See, e.g., Marriage/Children of Betty L.W. v. William E.W., 569 S.E.2d 77 (W. Va. 2002); W. v. W., 728A.2d 1076 (Conn. 1999); Godin v. Godin, 725 A.2d 904 (Vt. 1998); Pietros v. Pietros, 638 A.2d 545 (R.I.1994).70American Law Institute, Principles of the Law of Family Dissolution § 3.02A comment d (MatthewBender 2002).71See Elizabeth Bartholet, “Guiding Principles for Picking Parents,” 27 Harv. Women’s L.J. 323 (2004);Melanie B. Jacobs, “When Daddy Doesn’t Want To Be Daddy Anymore: An Argument Against PaternityFraud Claims,” 16 Yale J. L. & Fem. 193 (2004).
Illinois, for example, amended its parentage law in 1991to liberally allow for fathers to disestablish paternity based on later DNA evidence. See Steven N. Peskind,“Who’s Your Daddy?: An Analysis of Illinois’ Law of Parentage and the Meaning of Parenthood,” 35 Loy.U. Chi. L.J. 811 (2004).72See Williams v. Williams, 843 So.2d 720 (
Miss. 2003); Bartholet, supra note 71; Jacobs, supra note 71;Theresa Glennon, “Somebody’s Child: Evaluating the Erosion of the Marital Presumption of Paternity,”102 W. Va. L. Rev. 547 (2000).


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19Contrary to the California law upheld in Michael H. v. Gerald D.,73a growingnumber of states now permit an unmarried man to establish his legal parentage ofa child born of a married woman, even over the objections of the mother’shusband.74The readiness of these jurisdictions to reassign parental status onreceipt of a DNA match, even when that means extinguishing a substantial pre-existing parent-child bond, reveals a reflexive commitment to biology as theessential foundation of parenthood.75The assumed tie between biological reproduction and parentalresponsibility remains particularly strong in the law of child support. As JuneCarbone and Naomi Cahn have observed, “[s]hotgun marriage may be dead,” but“shotgun parenthood is not.”76To the contrary, “the lack of consensus on thelegal status and obligations of functional parents leaves biological parents as thereadiest source of support.”77Accordingly, a series of federal welfare laws datingback to 1974 have ratcheted up pressure on states to facilitate the earlyidentification of fathers so that support obligations might be imposed andenforced. The 1996 Personal Responsibility and Work OpportunityReconciliation Act sets of goal of establishing paternity in 90 percent of welfarecases and requires mothers to cooperate in identifying fathers or risk the loss of73491 U.S. 110 (1989).74Since the Supreme Court’s 1989 decision in Michael H., a number of states have changed their lawthrough legislative or judicial action to allow men to establish their own paternity despite the maritalpresumption favoring another man. See, e.g., In re Witso, 627 N.W.2d 63 (Minn. App. 2001); Callender v.Skiles, 591 N.W.2d 182, 189-90 (Iowa 1999); State ex rel. Roy Allen S. v. Stone, 474 S.E.2d 554 (W. Va.1996); In re J.W.T., 872 S.W.2d 189, 198 (Tex. 1994).75In In re Parentage of John M., 817 N.E.2d 500 (Ill. 2004), the Illinois Supreme Court turned aside ahusband’s facial constitutional attack on a provision of the state’s parentage law that permitted another manto challenge the husband’s paternity of his 10-year-old son and to demand corroborating DNA tests,without any judicial inquiry into the action’s effect on the child’s wellbeing.76Carbone & Cahn, supra note 14, at 1025.77Id.


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20welfare support.78Massive resources are thus devoted to identifying geneticfathers and establishing their legal parentage. As a result, as Jane Murphyobserves, “the emerging definition of fatherhood in this context is increasinglybased solely on biology.”79Yet, as surely as these laws seem to be inflating the role of biology indetermining parentage, in other contexts courts have gone at least as far in theopposite direction. In 2004, the California Supreme Court held that whenmultiple adults qualify as potential parents, based either on biology or pastcaregiving, judges should simply choose among them by “weighingconsiderations of policy and logic” in determining the most “appropriate”parent.80This amounts, of course, to assigning parenthood based upon a “bestinterests of the child” finding, much like the standard used in parent-versus-parentcustody disputes except that the unsuccessful claimant in a parentage case riskslosing not only custody but all legal ties to the child.81A claimant’s genetic tie isentitled to no special weight in this calculation; rather, it is simply a factor to beweighed from case to case alongside other considerations such as a claimant’scaregiving, marital ties, and parenting intentions.8278PRWORA, Pub. L. No. 104-193, 110 Stat. 2105 (1996) (codified in relevant part at 42 U.S.C. §§608(a)(2), 652(g)).79Murphy, supra note 66, at 5; see also Ellman, supra note 9, at 66-68 (noting the increasingly “exclusivereliance on biological paternity in the invigorated campaign to collect child support from unmarriedfathers”); Oren, supra note 21, at __.80In re Jesusa V., 10 Cal. Rptr. 3d 205, 218-19 (Cal. 2004); see also Craig L. v. Sandy S., 22 Cal. Rptr. 3d606, 612-14 (Cal. App. 2004). Courts in several other jurisdictions have come to the same result. SeeDep’t of Soc. Servs. v. Byer, 678 N.W.2d 586, 591-92 (S.D. 2004); G.D.K. v. Dep’t of Fam. Servs., 92P.3d 834, 837-38 (Wyo. 2004); N.A.H. v. S.L.S., 9 P.3d 354, 366 (Colo. 2000); Doe v. Doe, 52 P.3d 255,262 (Haw. 2002).81See Jesusa V., 10 Cal. Rptr. 3d at 229 (interpreting California’s parentage act to dictate a “best interests”determination in assigning parentage among competing presumed fathers).82See Id. at 216-17 (concluding that state’s parentage act contains no “automatic preference for biologicalfathers, even if the biological father has come forward to assert his rights”) (emphasis omitted).


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21Although this mandate, directing courts to “weigh all relevant factors –including biology – in determining which [paternity] presumption was founded onweightier considerations of policy and logic,”83is drawn directly from the text ofthe Uniform Parentage Act, these courts are surely using that language for apurpose never contemplated by the Act’s drafters. The Uniform Parentage Act of1973 did indeed direct courts to resort to “considerations of policy and logic” inresolving conflicting presumptions of paternity, but almost certainly only for thepurpose of determining which of the competing claimants was most likely to bethe child’s biological father. The courts’ recent seizure on the “policy and logic”language to authorize judicial selection of the “best” parent for a child,notwithstanding superior and even undisputed evidence of another man’sbiological fatherhood, is a dramatic extension of the Act’s original understandingof the judicial role.84B. Uncertainty in the Scope of Parental Rights and ObligationsJust as case law seems to be moving in different directions with respect tothe role of biology, marriage, and function in the assignment of parental identity,there are arguably conflicting signals concerning the strength and scope of theprerogatives and obligations that attend that status.On one hand, the law of parental obligation has become increasinglyunyielding. The child-support duties of non-custodial parents are now dictated byformulaic guidelines that take only limited account of individual circumstances.83Id. at 220.84See David D. Meyer, “The Constitutionality of ‘Best Interests’ Parentage,” 14 Wm. & Mary Bill of RightsJ. __ (2006).


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22Enforcement of those obligations, long weak and ineffective, has grownincreasingly stringent.85Largely as a result of federal efforts to recoup welfarespending, a great deal of this enforcement activity is focused on the working ornon-working poor, with much of the money collected going directly to reimbursethe government rather than to support dependent children.86Moreover, the trendis to sever the legal obligation of support from the prerogatives of contact withsupported children. Thus, a parent today may no longer defend a failure tosupport his children by pointing out that he was wrongfully denied visitation orother privileges.87Indeed, he may not even defend on the ground that he wasdenied parenthood. Courts have held men liable for support arrearages accruingduring years when they were entirely ignorant of the children’s existence – that is,when they were not legal parents at all.88Thus, the legal duty of parental support– often grounded in biological paternity alone – has grown larger and more rigidin recent years.Court decisions over the same period have reinvigorated legalenforcement of parental rights as well. In Troxel v. Granville, the U.S. SupremeCourt reaffirmed that parents have a fundamental constitutional right to direct theupbringing of their children.89This privacy right, entitled to heightenedprotection as an aspect of substantive due process, specifically includes the power85See Harry D. Krause, Child Support in America: The Legal Perspective (Michie 1981); Harry D. Krause,“Child Support Reassessed: Limits of Private Responsibility and the Public Interest,” 1989 U. Ill. L. Rev.367 (1989).86See Harry D. Krause, “’Family Values’ and Family Law Reform,” 9 J. Contemp. Health L. & Pol’y 109,121 (1993); Murphy, supra note 66, at 13.87See Ira Mark Ellman, “Should Visitation Denial Affect the Obligation To Pay Support?,” 36 Ariz. St. L.J.661 (2004).88See Ellman, supra note 9, at 68-70 (discussing Mitchell v. Lee D., 564 N.W.2d 354 (Wis. Ct. App. 1997),and other cases).89Troxel v. Granville, 530 U.S. 57 (2000).


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23to exclude or limit a child’s contacts with other, more distant family members.90This would seem to solidify the claim of parental prerogative against legislative orjudicial encroachment and increase the stakes of the initial assignment ofparentage. And, indeed, many decisions in the state courts since 2000 haveinvoked the Supreme Court’s decision in Troxel to strike down custody orvisitation orders entered on behalf of non-parents, or even to strike downwholesale statutes permitting such orders.91At the same time, it is readily possible to find other signals from theSupreme Court suggesting a relaxation of the constitutional doctrine protectingparents’ rights. Troxel itself, after reaffirming the fundamental child-rearingliberty of parents, went on to decide the case in a manner that raised seriousdoubts about the robustness of the right.92The Court did not subject the visitationlaw to the strict scrutiny ordinarily used in cases where the government burdensfundamental rights under due process, a standard under which the burden ispresumed to be unconstitutional unless it can be shown that the intrusion isnarrowly tailored to the achievement of a compelling state interest.93Instead, theTroxel plurality used an ad hoc test that balanced deference to parents withrecognition that many children today have important caregiving relationships with90See id. (holding that a single parent was entitled to limit her daughters’ contacts with their paternalgrandparents).91See Elrod & Spector, supra note 26, at 552-54; Maldonado, supra note 48, at 883-88.92See David D. Meyer, “Lochner Redeemed: Family Privacy After Troxel and Carhart,” 48 UCLA L. Rev.1125 (2001).93See Troxel, 530 U.S. at 80 (Thomas, J., concurring) (questioning the plurality’s failure to apply strictscrutiny).


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24non-parents that are worthy of preservation.94The Justices’ obvious desire toleave flexibility in future cases so that the traditional prerogatives of parentsmight be accommodated with the weighty interests in non-traditional, “parent-like” relationships suggests that parental rights are not as robust and clearlydefined as some state court decisions assume.95The Supreme Court underscored that notion in its 2004 decision in ElkGrove Unified School District v. Newdow.96In that case, the Court ruled that anon-custodial father lacked standing to bring suit alleging that the recitation of thePledge of Allegiance in his daughter’s public school classroom violated hisconstitutional rights as a parent to raise his daughter. He lacked standing tocomplain about religious influences at his daughter’s school, the Court explained,because the state-law custody order assigned final say over the girl’s upbringingto her mother.97The holding in Newdow is curious because it implies that a state court hasthe power to effectively strip a parent of his constitutional child-rearing rightsthrough the framing of a custody order.98But the Court’s dismissal of the father’sconstitutional claim is probably best understood as actually resting on different94See id. at 67-70 (plurality opinion of O’Connor, J.) (holding that courts owe deference to parents’judgments about the best interests of their children and should order visitation only if “special factors”support overriding the parents’ wishes).95See Emily Buss, “Adrift in the Middle: Parental Rights After Troxel v. Granville,” 2000 Sup. Ct. Rev.279; Stephen G. Gilles, “Parental (and Grandparental) Rights After Troxel v. Granville,” 2001 Sup. Ct.Econ. Rev. 69; David D. Meyer, “Constitutional Pragmatism for a Changing American Family,” 32 RutgersL.J. 711 (2001).96124
S. Ct. 2301 (2004).97See id. at 2311-12.98See David D. Meyer, “Partners, Caregivers, and the Constitutional Substance of Parenthood,” inReconceiving the Family: Critical Reflections on the American Law Institute’s Principles of the Law ofFamily Dissolution (R. Wilson ed. 2006).


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25grounds.99In fact, it appears that Newdow’s reluctance to credit the father withfull-throated parental rights was driven substantially by the same concerns thathad led the Justices four years earlier to qualify the strength of parental rights indeciding the merits of the claim in Troxel. In Troxel, the Justices had eschewedstrict scrutiny in favor of the weaker requirement that courts give “some specialweight” to a parent’s child-rearing preferences apparently for fear that a morestringent conception of parental prerogative would empower parents to extinguishimportant interests or relationships highly valued by others within the family.The felt need to accommodate the potentially conflicting interests of other familymembers, to leave room for the preservation of alternative caregivingrelationships in an age when it is “difficult to speak of an average Americanfamily,” propelled this softening of traditional parental rights.100Likewise, inNewdow, Justice Stevens expressed skepticism about the father’s claim of aconstitutional right to oversee his daughter’s schooling on the ground that it riskeda collision with the equally weighty interests of other family members, includingNewdow’s daughter and her mother.10199One such other ground might, of course, have been the Court’s simple desire to avoid the merits of adifficult and highly divisive case. See Newdow, 124
S. Ct. at 2316 (Rehnquist, C.J.) (describing the Court’sstanding concerns as “ad hoc improvisations” for avoiding the merits of Newdow’s claim).100See Troxel, 530
U.S. at 64 (plurality opinion); id. at 98 (Kennedy, J., dissenting); id. at 90 (Stevens, J.,dissenting).101See Newdow, 124
S. Ct. at 2310. Justice Stevens explained:The difficulty with [Newdow’s] argument is that Newdow’s rights, as in many cases touchingupon family relations, cannot be viewed in isolation. This case concerns not merely Newdow’sinterest in inculcating his child with his views on religion, but also the rights of the child’smother. . . . And most important, it implicates the interests of a young child who finds herself atthe center of a highly public debate.Id. Justice Stevens had expressed an essentially identical concern about a strong parental-rights ruling onthe merits in Troxel. See Troxel, 530
U.S. at 88-89 (Stevens, J., dissenting).


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26All this suggests a good deal of uncertainty in the future scope of parentalprerogatives. The Supreme Court has clearly reaffirmed the traditional view thatparents are entitled to exercise a primary influence in child-rearing decisions. Butin doing so the Court also seems determined to leave plenty of room for stateintervention aimed at ensuring that a parent’s decisions do not impose seriouscosts on children and others within the immediate family. As with the blurring ofthe family law’s traditional boundary markers of parenthood, the Court’s desire tobalance these opposing values in constitutional doctrine has led it abandon therelatively bright lines of strict scrutiny for softer and less certain standards ofintermediate scrutiny.CONCLUSIONScholars of diverse perspectives have expressed serious concerns aboutthe directions that family law has taken recently in trying to adapt legalunderstandings of parenthood and parental rights to evolving social conditions.For all their differences, these critics share a fundamental worry that in its rush tobe adaptable, family law will end up going too far and damaging traditions thatare of profound and perhaps irreplaceable value to society – either traditionalfamily ideals, like marriage or the nuclear family, or traditional familyprerogatives, such as parental autonomy. For now, there is no consensus aboutjust how to balance respect for tradition with the need to take account of the“changing realities of the American family.”102It is clear only that there is nogoing back, and that until society itself comes to a clearer resolution of its own102Troxel, 530
U.S. at 64 (plurality opinion of O’Connor, J.).


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27ambivalence about the respective roles of biology, caregiving, contract, andtradition in defining parenthood, family law is unlikely to do much better.


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