Family law scholarship goes to court: functional parenthood and the case of Debra H. v. Janice R.

• Author: Goldberg, Suzanne B.
• Position: New York

Family law literature, while diverse in its exploration of contemporary families, also offers important threads of consensus. These strong points of coherence, when brought together with relevant case law, can be a useful means of advancing the academic conversation as well as engaging directly with courts to shape the law's development.

In a field as complex as family law, myriad academic viewpoints on any given issue often make it difficult to imagine scholarly discussion having utility for courts. As we aim to show here, however, amicus briefs can be important vehicles for synthesizing the literature, highlighting basic points of consensus and connecting family law scholarship to ongoing cases. (1)

The Family Law Academics Amicus Brief

The amicus brief reproduced here ("the Brief') makes the connection between family law theory and jurisprudence by synthesizing the scholarly literature on "functional parenthood" and literally bringing it to court. The central issue addressed is how the law should recognize the parental rights of an individual who functions as a parent despite having neither biological nor adoptive ties to the child. Legal recognition of functional parenthood, the Brief argues, is intended both to counteract the harm inflicted upon children by separating them from a loving parent (2) and to vindicate the rights of functional parents.

The Brief was submitted in the 2010 New York Court of Appeals case, Debra 14. v. Janice R., (3) in support of petitioner Debra H. The petitioner had brought the suit two years earlier in an effort to retain contact with the child she had been raising with her former partner since the child's birth. At that time, functional parents like Debra did not have standing in New York to petition for visitation or custody as a result of the 1991 state high court ruling in Alison D. v. Virginia M., (4) in which the court declared adults in Debra's position to be "legal stranger[s]" to their children. (5)

Strikingly, forty-five family law professors from law schools across New York State came together to sign the Brief. By collectively endorsing one set of principles for judicial recognition of functional parents, (6) they made a strong statement to the court regarding the importance of functional parent-child relationships and the viability of according those relationships legal recognition.

The amici presented this analysis in part to neutralize the biological parent's attempt to exploit the complex and sophisticated state of family law literature. That parent, Janice R., had urged the court not to wade into the intricacies of adopting a functional approach to defining legal parenthood, (7) but rather to leave any change in the law to the legislature. Janice R. criticized what she perceived to be "Debra H.'s inability to consistently propound one standard" for granting standing to functional parents. (8) She emphasized the divergent approaches of legislatures on a range of factors, including the amount of time required before one can qualify as a functional parent, statutes of limitations for bringing a petition, and distinctions between petitions for visitation and custody. (9) She argued the issue of functional parenthood was so complex--as evidenced by the fact that "the standards defining who can assert such standing varies widely from state to state" (10)--that any changes to New York's standard needed to be addressed by the state legislature. The family law academics countered those arguments by reinforcing that points of agreement exist in the literature and the case law upon which courts can and should rely in making functional parenthood determinations.

The Key Features of Functional Parenthood

To demonstrate the consensus around functional parenthood, the Brief draws on the academic literature, the American Law Institute's Principles of Family Dissolution, (II) and practices and jurisprudence in other states. It presents ways that courts can--and already have--looked to function rather than form when defining legal parenthood at the point of family dissolution. More specifically, the Brief focuses the court's attention on three factors consistently endorsed in the academic literature: 1) legal parent's consent; 2) functional parent's intent; and, 3) formation of a parent-child bond.

With respect to consent, the Brief argues that it is essential that the legal parent have fostered a functional parent-child relationship. Evidence of the legal parent's having fostered the other adult's parental relationship with the child in effect confirms the legal parent's consent that to the other adult also becoming the child's parent. (12) In addition, the requirement protects the legal parent's interests by ruling out claims from people who have not actually functioned as parents. Consent can be manifested in a number of ways; as the Brief shows, a legal parent can: incorporate the functional parent's family name into the child's name; encourage joint decision-making with respect to the child's healthcare, education and other needs; and support the development of relationships between the functional parent's immediate family or other relatives and the child. (13)

In addition to requiring the legal parent's consent, the amici maintain that the functional parent must have intended to become a parent to the child, either from conception or by becoming part of an existing family unit. A functional parent can demonstrate this intent by assuming parental responsibility for the child. This qualitative analysis would consider, for example, the functional parent's sharing in the daily emotional and financial care of the child, participation in religious activities with the child and taking a parent-like role ing in family outings. (14)

The development of a parent-child bond may also provide a supplemental indication that a functional parent-child relationship has developed and should be recognized by law. Indeed, a number of courts have noted this feature in discussing functional parenthood. (15) it may be difficult, however, to prove the existence of a parent-child bond when a child is very young.

When all other features of parenthood are in place, the amici argue that such a difficulty should not preclude a functional parent from having standing to petition for custody of or visitation with the child he or she intended to raise with the legal parent's consent.

A Partial Victory

The decision in Debra H. v. Janice R. came down on May 4, 2010, two years after Debra initially sought the aid of the courts to secure her rights as a parent. The New York Court of Appeals held that Debra has standing as a legal parent to petition for visitation and custody rights with respect to her child. The majority did so, however, on the basis of the couple's Vermont civil union, not on grounds supported by the ideas of functional parenthood. (16)

Consequently, although Debra won an important victory in the context of her own relationship with the child she had been raising, the decision leaves most functional parents without legal recognition in New York. In fact, the court specifically affirmed its holding in Alison D. that "parentage under New York law derives from biology or adoption," (17) and expressed the view that those factors provide a needed bright-line rule for establishing parental rights. (18) It declared its conviction that "the predictability of parental identity fostered by Alison D. benefits children and the adults in their lives," (19) and that the type of rule urged by Debra H. "threatens to trap single biological and adoptive parents and their children in a limbo of doubt." (20) Any change in the meaning of the term "parent," it wrote, should be made by the legislature rather than by the courts. (21)

Still, despite the majority's failure to embrace the amici's argument, one concurring judge offered clear support for the functional parenthood doctrine, establishing a potential path for future decision-making on this issue: She found Alison D. to be both "outmoded and unworkable," as urged by the amici. (22) Yet while her opinion stands as at least one appellate voice of support in New York for the adoption of a functional approach to parenthood, (23) the court's majority left parents in Debra's position who do not have a civil union or marriage with their former partner in the same situation as before the case was decided--as "legal strangers" to the children they are raising.

The Road Ahead

Debra H. won a personal victory in May, 2010, in that she won the right to ask a court for visitation with and custody of her child. However, the law in New York remains substantially unchanged: non-biological parents who have not adopted the children they are raising with a partner, or who were not married to or in a civil union with that partner prior to the child's birth, do not have standing to seek visitation or custody.

Following the New York high court's ruling, Janice R. appealed for review in the United States Supreme Court, but the Court denied her petition. (24) This denial, as well as the recent denial of review in a similar case (25) provide a strong indication that the Court intends to leave determinations of functional parenthood to the states. (26)

With this ongoing state-based control over family recognition, functional parents around the country may continue to face challenges from their former partners like those Debra faced. While some states, notably California, (27) have adopted the principles of functional parenthood, others, such as New York, Utah, Illinois and Tennessee, continue to leave functional parents in limbo. (28) Academics can thus continue to play an important role in providing information and analysis that may be critical for securing functional parents' legal rights in New York and in other jurisdictions as states assess, and re-assess, their approach to functional parenthood.

INTEREST OF AMICI CURIAE

Amici curiae are forty-five professors...