Until relatively recently, the law did not provide avenues through which both members of a same-sex couple could gain recognition as the parents of the children they were raising together. Instead, generally only the member of the same-sex couple who was the child’s biological parent was recognized as the child’s legal parent, and the nonbiological parent was considered a legal stranger to the child. Historically, nonbiological parents in same-sex relationships could not gain legal parent status because the traditional avenues for establishing legal parent status in the United States have been based upon biology, marriage, and adoption. Since joint biological parenthood was not an option for same-sex couples and for most of the nation’s history members of same-sex couples could not marry each other or adopt each other’s legal children, the traditional avenues for establishing legal parent status excluded nonbiological parents raising children in same-sex relationships. As a result, if upon the dissolution of the relationship between the “formal legal parent” and the nonbiological parent, the formal legal parent restricted or terminated the nonbiological parent’s access to the child, the nonbiological parent generally was left without legal recourse. In such situations, courts usually denied nonbiological parents any rights to custody or visitation, which effectively ended the relationship between a child and an individual who had functioned, oftentimes since birth, as the child’s parent. ...
This article argues that courts and legislatures should continue to adopt and apply equitable parenthood doctrines, despite the increasing availability to nonbiological parents raising children within same-sex relationships of formal avenues to establishing legal parent status. As an initial matter, the current avenues to establishing formal legal parent status for nonbiological parents raising children within same-sex relationships generally require marriage, adoption, or both.18 Importantly, there are many reasons for why same-sex parents may not pursue these marriage- or adoption-based avenues that are completely unrelated to the relationship between the parents or between the parents and their children. Moreover, excluding equitable parenthood doctrines due to the availability to same-sex couples of marriage- or adoption-based avenues for establishing legal parent status would further exacerbate the law’s discriminatory treatment of same-sex parents and disproportionately harm same-sex couples and their children. This is because, unlike same-sex couples, different-sex couples raising children have access to a variety of avenues to establishing legal parent status that require neither marriage nor adoption. Moreover, even if in the future same-sex parents receive greater access to the formal avenues of establishing legal parent status available to different-sex parents, equitable parenthood doctrines will still serve an important function. There will always be couples who, despite jointly raising their children, are unable or unwilling for various reasons to take the steps necessary to establish formal legal parent status for the functional parent, and it is both unfair and unwise to punish children so harshly for the actions of their parents. A legal approach that categorically refuses to provide rights to functional parents is an approach that fails to promote one of family law’s most essential goals: protecting the best of interests of children.
The article is organized in the following manner: Part I provides a historical overview of the legal treatment of same-sex parents raising children together and traces the development of equitable parenthood doctrines. Part II identifies and examines the avenues to establishing formal legal parent status that have been extended to same-sex couples in recent years as well as those avenues available to different-sex couples that have not yet been extended to same-sex couples. Part III evaluates whether under current law governing the recognition of paren tchild relationships there is a continuing need for equitable parenthood doctrines, and argues that there are compelling reasons for legislatures and courts to continue to adopt and apply equitable parenthood doctrines despite the recent expansion to same-sex couples of various avenues to establishing formal legal parent status. Part IV first evaluates whether recognition of equitable parenthood doctrines will be necessary if, in the future, same-sex parents gain greater access to the formal avenues to establishing legal parent status enjoyed by different-sex parents. After answering this question in the affirmative, Part IV concludes by exploring the role that the LGBT rights movement should play with regard to the maintenance and promotion of equitable parenthood doctrines.
Jessica Feinberg, Whither the Functional Parent? Revisiting Equitable Parenthood Doctrines in Light of Same-Sex Parents’ Increased Access to Obtaining Formal Legal Parent Status, 83 Brook. L. Rev. (2017).