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

Author:Mellissa Holtzman, Ph.D.
“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.
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.
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.

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