Marriage as Gatekeeper: The Misguided Reliance on Marital Status Criteria to Determine Third‐Party Standing†

• Date: 01 October 2020
• Author: Barbara A. Atwood
• Published date: 01 October 2020
• DOI: http://doi.org/10.1111/fcre.12531

MARRIAGE AS GATEKEEPER: THE MISGUIDED RELIANCE

ON MARITAL STATUS CRITERIA TO DETERMINE

THIRD-PARTY STANDING

†

Barbara A. Atwood

This essay examines the continued use of parental marital status as a gatekeeper to determine third-party standing. Under the

statutory law of about half the states, nonparents lack standing to seek contact with a child over parental objection if the chi-

ld’sparents are in an intact mar riage. A typical statutory frameworkgrants access to court only if a parent has died or the par-

ents are divorced or never married. While such a framework may haveintuitive appeal, case law reveals the illogical results it

can produce. Moreover, the framework defines parental liberty based on marital status –an approach in tension, if not in

direct conflict, with Troxel. At the same time, the framework disserves children’s interests by ignoring their established rela-

tionships with third parties in determining standing. Alternative approaches proposed by the Uniform Law Commission and

the American Law Institute, which impose a heightened burden of proof and require a showing of harm to the child if contact

is denied, would give parental liberty a more even-handed deference while also respecting the importance of children’s

established bonds.

Key Points for the Family Court Community:

Third-party or nonparent standing to seek contact with children is directly linked to parental marital status in about

half the states.

Statutes that define parental liberty according to a parent’s marital status have been struck down as unconstitutional

in a few state courts and upheld in others.

Several state courts have held that adequate deference to parental liberty can be achieved by imposing a heightened

burden of proof on the nonparent and requiring specific substantive showings.

Many state courts and legislatures have concluded that de facto or functional parents, who have engaged in a parent-

ing role with the consent of the legal parent, hold a distinct constitutional status.

To protect children’s interests and to provide effective screening, several state statutes require courts to consider chil-

dren’sestablished relationships with third parties, both at the pleading stage and at the hearing on the merits.

The Uniform Nonparent Custody and Visitation Act and the ALI’s proposed provisions on children’s associations

with third parties provide alternative frameworks for screening third-party requests for contact with children.

Keywords: De Facto Parent; Grandparent Visitation; Marital-Status Criteria; Nonparent Contact; Parental Liberty; Third-

Party Standing.

The out-sized role of marriage in determinations of legal parentage has sparked considerable

attention in recent years,

1

but the role of marriage in limiting third parties’contact with children

has not come under the same scrutiny.

2

Just as the marital presumption can operate to defeat out-

siders’claims of parentage,

3

the intact marriage of a child’s parents often operates as a bulwark

against nonparents’efforts to maintain contact with children over the parents’objections. While

courts and legislatures are moving beyond formalism to recognize functional parentage in a range

Corresponding: batwood@arizona.edu

†

Mary Anne Richey Professor of Law Emerita, University of Arizona James E. Rogers College of Law. While I served as

vice-chair of the Uniform Nonparent Custody and Visitation Act, the views expressed here were formed well before that pro-

ject. For helpful comments on an earlier draft of this Essay, I thank Albertina Antognini, Naomi Cahn, Clare Huntington,

Doug NeJaime, and other participants in the 2020 Nonmarriage Roundtable, held February 21, 2020, at the University of

Arizona Rogers College of Law.

FAMILY COURT REVIEW, Vol. 58 No. 4, October 2020 971–991, doi: 10.1111/fcre.12531

© 2020 Association of Family and Conciliation Courts

of contexts,

4

formalism is alive and well in determining whether a nonparent has standing to seek

contact with a child over a parent’s opposition.

5

About half of the states today have laws that condi-

tion nonparent standing on the marital status of a child’s parents; the statutory frameworks typically

deny standing if the child’s parents are in an intact marriage but open the courthouse door if the

parents are unmarried, divorced, or if a parent has died.

6

In keeping with the focus of the Nonmarriage Roundtable, this Essay examines the role of paren-

tal marital status in disputes over third-party or nonparent contact with a child. I use “third party”

and “nonparent”interchangeably because each term appears in statutes across the country, but nei-

ther term captures the close parent-like relationships underlying many petitions for contact with

children. Moreover, after failing to succeed on a claim of parental status based on consensual co-

parenting or other ground, an individual who has been in a parenting role may be forced to pursue

relief as a “nonparent”or “third party”as the only available recourse.

7

That said, the inadequacy of

the law in recognizing claims of parentage has been cogently explored and critiqued by others.

8

My

focus here is on the use of marital status criteria to determine standing for third-party or nonpa rent

contact, even if proceeding as a nonparent is a last resort.

In general, the thinking underlying marital status criteria is that strict protection of marital fami-

lies is necessary to protect parental liberty and autonomy but that when marriages end through

divorce or death, children may benefit from relationships with other close adults.

9

The legislative

desire to protect the intact marital family unit from intrusions by outsiders may have intuitive

appeal, but marital-status criteria operate without regard to the merits of the third party’s underlying

claim. The criteria depend on the parents’circumstances rather than the child’s lived experience and

the relationship between the child and the third party. If the child’s parents are married, a third party

with a compelling claim for custody or visitation may never get into court, but if the parents are

unmarried or a parent has died, a third party with a groundless claim may nevertheless have stand-

ing. Not surprisingly, single parents resent that their married counterparts receive greater protection

from third-party claims and have argued that marital status should not define their constitutional lib-

erty.

10

Recently, a few state courts have struck down marital-status criteria on constitutional gro-

unds, finding an unjustified intrusion on parental autonomy.

11

Significantly, both the recent Uniform

Nonparent Custody and Visitation Act

12

and the third-party contact provisions in the proposed

Restatement of Children and the Law

13

reject the use of parental marital status as gatekeeper.

Part I provides an overview of marital-status statutor y criteria in operation, including a brief

reminder of the constitutional interests recognized in Troxel v. Granville.

14

State court decisions

post-Troxel reveal the often illogical consequences of the marital status frameworks as well as their

constitutional vulnerabilities. Part II outlines the alternative frameworks for adjudicating nonparent

claims crafted by the Uniform Law Commission and the American Law Institute. Part III examines

the competing policies facing legislatures in drafting nonparent contact schemes, with attention to

the shifting interests at play when nonparents seek access to children over parental objection. As

suggested there, focusing on the third party’s relationship with the child rather than the marital sta-

tus of the child’s parents to determine third-party standing would treat fit parents equally, whether

married or unmarried, and concomitantly would better protect children’s wellbeing consistent with

contemporary trends in child law.

15

I. PART I. MARITAL STATUS CRITERIA IN OPERATION

At common law, third parties had no right to maintain contact with children over a parent’s

objection and no standing to seek such access in court.

16

Absent legislative authorization, non-

parents petitioning for custody or visitation would be booted out of court.

17

The original Uniform

Marriage and Divorce Act of 1973

18

permitted custody actions by nonparents only if the child was

not in the physical custody of a parent at the time the petition was filed,

19

and it did not include a

provision for visitation petitions by a nonparent.

20

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