The question of psychological, or de facto, parents and their rights versus biological or adoptive parents has been percolating through the state and lower federal courts for some years. Given the disparity in approaches and the constitutional issues implicated, it is likely that the Supreme Court will take up this issue, and it may well do so in the near future. When it does, it is imperative that the Court adopt a test that will serve American society and her children and families well. This article proposes such a test.
The argument could be made that, absent a finding of unfitness, the rights of biological and adoptive parents should always prevail. That would be consistent with the nation's long-established common law tradition, but would be tantamount to saying that the concept of psychological or de facto parenthood should be rejected. Though a number of states still adhere to this approach, this article does not make that argument. With domestic relationships in our culture clearly in transition, the article presumes that the Court is more likely to pursue a non-bright line test.
The Court's opinion in Smith v. Organization of Foster Families for Equality and Reform (O.F.F.E.R.) provides principles that would both protect federalism and vindicate the constitutional rights of everyone involved in psychological parent cases. The article therefore suggests that, if or when the Court addresses this issue, it should apply the analytical construct already provided in O.F.F.E.R. The article closes by suggesting examples of current statutes and recent judicial decisions from several jurisdictions that would either be clearly permissible of open to challenge under the test presented on O.F.F.E.R.
- Parental Rights,
- De Facto Parenthood,
- Psychological Parenthood,
- Child Custody,
- Family Law
Available at: http://works.bepress.com/eric_degroff/4/