Judicial Decision Making in Contested Adoptions: The Influence of Children's Best Interests Arguments

• Author: Mellissa Holtzman, Ph.D.
• Pages: 407-440

JUDICIAL DECISION MAKING IN

CONTESTED ADOPTIONS:

THE INFLUENCE OF

CHILDREN’S BEST INTERESTS ARGUMENTS

MELLISA HOLTZMAN, PH.D.*

I. INTRODUCTION

“Custody battle.” Within popular culture, this phrase often evokes

images of mud-slinging ex-spouses who are fighting over their children,

often in highly contentious and potentially damaging public disputes. This,

of course, is but one reality. Custody battles do not always involve

extreme conflict, public spectacle, or even divorcing spouses. Frequently,

custody battles involve disputes between biological parents and individuals

who are euphemistically referred to as “third parties”1—unrelated adoptive

parents; stepparents; gay, lesbian, bisexual, or transgender (GLBT)

coparents; foster parents; and relatives who have been rearing someone

else’s children for extended periods of time.2 Importantly, these cases

introduce a level of complexity into the decision-making process that is not

present in custo dy disputes invol ving two divorcin g, biological pare nts.

When biological parents divorce, judges are typically charged with

determining custody based on the child’s best interests.3 Existing case law

Copyright © 2014, Mellisa Holtzman.

* Mellisa Holtzman is an Associate Professor of Sociology at Ball State University. She

wishes to thank Kendal Kosta, Nora Hall, Rebecca Peters, Lindsey Yoder, Matthew Wright,

Owen McConnell, Jennifer Moore, Heather Nipper, and Kelsey Englert for valuable

research assistance. This research was supported by a grant from the National Science

Foundation, Law and Social Science and Sociology Programs (#0849681, Mellisa

Holtzman, PI) and a General Faculty Research Grant from Ball State University. Please

direct all correspondence to Mellisa Holtzman at mkholtzman@bsu.edu or the Department

of Sociology, Ball State University, Muncie, IN 47306.

1 Mellisa Holtzman, The “Family Relations” Doctrine: Extending Supreme Court

Precedent to Custody Disputes Between Bio logical and Nonbiological Parents, 51 FAM .

REL. 335, 335 (2002) [hereinafter Holtzman I].

2 Throughout this Article, I refer to these individuals as nonbiological parents. A

nonbiological parent is an individual who is genetically unrelated to a child, but who has

functioned as a parent to that child via daily caregiving, emotional support, economic

assistance, shared residency, and so forth. See id.

3 See Determining the Best Interests of the Child, CHILD WELFARE INFO. GATEWAY 1

(2012), https://www.childwelfare.gov/systemwide/laws_policies/statutes/best_interest.pdf.

408 CAPITAL UNIVERSITY LAW REVIEW [42:407

and divorce statutes for the state guide and constrain custody decisions

despite judges’ wide discretion regarding what constitutes a child’s best

interests.4 However, the legal landscape is more complex when

nonbiological parents (e.g., third parties) are involved because judges must

consider more than just the child’s best interests. Judges must also account

for the biological parents’ rights and the nonbiological parents’ place

within the child’s life and existing family structure.5 Judges are often

faced with juggling the best interests doctrine, the parental rights doctrine,

and social, as well as legal, conceptions of the family in the decision-

making process.

Multiple relevant decision-making doctrines complicate the process in

a number of important ways. First, judges must weigh competing

doctrines against one another to determine which ones take precedence.

Second, the introduction of multiple doctrines shifts the decision-making

focus off children—whose custody is at stake—and onto adults and their

rights as parents. As a consequence, many custody disputes that involve

biological and nonbiological parents never discuss children’s interests at

all.6 Instead, the cases focus on contested definitions of parenthood and

the inherent rights of biological parents to the custody of their children.7

This kind of doctrinal conflict is especially apparent in contested

adoptions. As defined here, contested adoptions are those cases in which a

nonbiological parent is either pursuing adoption of a child against the

wishes of that child’s biological parent or, in the case of intact GLBT

relationships, seeking a second-parent adoption for the nonbiological

coparent, but facing judicial hurdles.

Contested adoptions come before the courts for a variety of reasons. It

may be that the biological parent surrendered the child for adoption, but

then changed his or her mind. It may be that the biological parent left the

child in the long-term care of a relative who now seeks adoption. It may

involve foster parents who wish to make permanent their relationship with

the child for whom they are caring. It may involve stepparents who want

to formalize their parental status with respect to the children they are

rearing. Or it may occur when GLBT parents, who have used artificial

reproductive technologies, seek second-parent adoptions for the

nonbiological coparent. Regardless of the circumstances, contested

4 Id.

5 See Holtzman I, supra note 1, at 335–36.

6 See infra Part IV.B.

7 See infra Part V.A.

2014] CONTESTED ADOPTIONS 409

adoptions bring a number of doctrines to the fore, and judges must weigh

these against one another in the decision-making process. This introduces

substantial complexity into custody decision making, in part because these

doctrines are often at odds with one another.

Nonetheless, much of my past research on nonbiological litigants

suggests that, despite this complexity, patterned judicial responses do

emerge.8 Judicial consideration of parents’ rights and definitions of the

family, in the absence of arguments based on children’s best interests,

generally result in custody outcomes that favor biological parents.9

However, if those same arguments are coupled with a judicial focus on the

child’s best interests, the relationship between the child and the

nonbiological parent is significantly more likely to be protected.10 Here,

this Article will explore the impact of children’s best interests arguments

within the specific context of contested adoptions.

To accomplish this, Part II begins with a discussion of the role of

children’s attachment relationships.11 This is an important consideration

because the existence of parent-child attachments, even in the absence of

biological relationships, is one of the primary justifications for considering

custody in a nonbiological parent.12 Part III elaborates on the sources of

doctrinal conflict and its potential consequences for custody decision

making.13 Part IV then offers some background information on the data

collection and analysis methods involved with this research.14 In Part V,

this Article illustrates how parents’ rights, family definitions, and

children’s interests influence the outcomes of contested adoptions.15

Finally, in Part VI, this Article offers thoughts on the legal and policy

implications of these findings.16

8 Holtzman I, supra note 1, at 336.

9 Mellisa Holtzman, Nonmarital Unions, Family Definitions, and Custody Decision

Making, 60 FAM. REL. 617, 627 (2011) [hereinafter Holtzman II].

10 Id. at 627.

11 See infra Part II.

12 See infra Part II.

13 See infra Part III.

14 See infra Part IV.

15 See infra Part V.

16 See infra Part VI.