HOW PARENTHOOD FUNCTIONS

• Published in: Columbia law review 2023-03, Vol.123 (2), p.319-434
• Main Authors: Joslin, Courtney G., NeJaime, Douglas
• Format: Article
• Language: English
• Subjects: Caregivers; Children; Claims; Common law; Courts; Datasets; Grandparents; Jurisdiction; Parent-child relations; Parental rights; Parents & parenting; Relatives; State court decisions; State laws; Trials
• ISSN: 0010-1958; 1945-2268

Approximately two-thirds of states have functional parent doctrines, which enable courts to extend parental rights based on the conduct of forming a parental relationship with a child. Different jurisdictions use different names—including de facto parentage, in loco parentis, psychological parenthood, or presumed parentage—and the doctrines arise from different sources of authority—common law, equitable, and statutory. While much has been written about functional parent doctrines, relatively little is known about how they work in practice. This Article fills that gap by documenting how functional parent doctrines operate, examining when, how, and to whom courts apply them. We collected and coded every electronically available functional parent decision issued between 1980 and 2021—669 cases in all—from every jurisdiction that has a functional parent doctrine. Our study reveals that common assumptions about functional parent doctrines fail to reflect the contexts in which such claims arise, the individuals who assert such claims, and the roles that the parties played in the children’s lives. Among cases in our data set, relatives, and grandparents in particular, constitute a large share of the functional parents. In the overwhelming majority of cases, the functional parent has been the child’s primary caregiver. And courts routinely apply functional parent doctrines to protect children’s relationships with the person who is parenting them. In sum, we find that courts commonly apply the doctrines in ways that make children’s lives more stable and secure by protecting their relationships with their primary caregivers and preserving their home placements.