Nonmarital Unions, Family Definitions, and Custody Decision Making

• Published date: 01 December 2011
• Author: Mellisa Holtzman
• Date: 01 December 2011
• DOI: http://doi.org/10.1111/j.1741-3729.2011.00670.x

MELLISA HOLTZMAN Ball State University

Nonmarital Unions, Family Def‌initions,

and Custody Decision Making

Relationships that have not been formalized by

marriage but that function like marriage are

increasingly common among couples. Many of

these relationships involve children who are

related to only one of the adults but who have

established parent-child relationships with both

adults. This raises questions about how best

to preserve children’s attachment relationships

in the event that the adult relationship

dissolves. Recent scholarship advocates two

distinct approaches: some argue for legal

recognition of expansive def‌initions of the family

whereas others advocate for legal recognition

of children’s rights. This research examines

the eff‌icacy of these competing arguments.

Findings suggest that judicial recognition of

family def‌initions is not, on its own, enough

to protect nonbiological attachments. Instead,

family def‌initions must also be combined with a

focus on children’s rights. The legal and policy

implications of these f‌indings are discussed.

In late 1989 Pamela, who was cohabiting with

Curt, gave birth to a child, Kristian (names

are pseudonyms; C.M. v. P.R., Massachusetts,

1995). Although Curt was not the biological

father, he attended birthing classes with Pamela

prior to Kristian’s birth and he was in the

delivery room when the child was born. Curt

was listed as the father on the birth certif‌icate

and Kristian bears his last name. During the

Department of Sociology, Ball State University, Muncie,

IN 47306 (mkholtzman@bsu.edu).

Key Words: child custody, family policy/law.

f‌irst 3years of Kristian’s life, Curt was an

involved parent, often assuming the primary

caretaker role while Pamela worked. Shortly

after Kristian’s third birthday, Pamela and Curt

ended their relationship and Curt moved out of

their home. However, with Pamela’s approval,

Curt maintained his relationship with Kristian

by paying regular child support and exercising

regular visitation. Then, in 1993, when Kristian

was 4 years old, Pamela disallowed any further

contact between Curt and Kristian.

In early 1995 Laura, who was the long-

time lesbian partner of Elise, gave birth to a

child, Casey (names are pseudonyms; E.N.O. v.

L.M.M., Massachusetts, 1999). Elise accompa-

nied Laura to all of her prenatal doctor visits,

cared for Laura throughout her trying pregnancy,

and coached her through the delivery. Elise then

cut Casey’s umbilical cord and wore an armband

provided by the hospital staff that denoted her

as a parent of the child. Casey bears the last

names of both Elise and Laura. During the f‌irst

3years of Casey’s life, Elise was an involved

parent—and during one 7-month period, she was

the child’s primary caretaker as Laura was expe-

riencing medical problems. Then, shortly after

Casey’s third birthday, Elise and Laura’s rela-

tionship ended and Laura precluded any further

contact between Casey and Elise.

Although the facts of these cases are remark-

ably similar, their outcomes were strikingly

different. Both cases involved unmarried cou-

ples who were living in marriage-like relation-

ships while jointly rearing a child. Both cases

involved nonbiological parents who willingly

assumed parental responsibilities for a child

Family Relations60(December2011):617 – 632617

DOI:10.1111/j.1741-3729.2011.00670.x

618 Family Relations

to whom they were not genetically related.

Both involved nonbiological parents who, by

all accounts, established close and loving rela-

tionships with the children, and both involved

nonbiological parents who, upon having their

parent-child relationships involuntarily severed,

sought relief from the courts in order to reestab-

lish rights to the children. Even so, the 1995

outcome for Curt was nothing like that of Elise

in 1999.

Curt was hindered by standard legal con-

ceptions of the family. Because he was nei-

ther Kristian’s biological nor presumed father

(because he and Pamela were not married), he

could not establish paternity and thus lacked

standing, according to the court, to bring a suit

for custody and visitation rights. Anticipating

that the issue of paternity might pose a prob-

lem, Curt also attempted to utilize the doctrines

of ‘‘equitable parent’’ (see Atkinson v. Atkinson,

Michigan, 1987) and equitable estopple to secure

rights to Kristian. The equitable parent doctrine

has typically been used by former stepparents

to assert that where a parent-child relationship

exists, it should be recognized and protected

by the courts. Equitable estopple is a broader

legal doctrine that bars someone from breaking

an agreement she or he has previously made.

Within the context of custody disputes, it is typ-

ically used to prevent a woman who has falsely

asserted paternity in one man from later denying

that man access to her child because he is, in fact,

not the child’s father. In Curt’s case, however,

the court rejected the equitable parent argument

on the grounds that even if Massachusetts law

recognized that doctrine, it would not apply to

Curt because he was not married to the child’s

mother, and they rejected the equitable estopple

argument on the grounds that although Pamela

had fostered Curt’s relationship with the child,

she never falsely alleged that Kristian was Curt’s

biological offspring. Consequently, Curt’s suit

was dismissed.

Elise, on the other hand, was aided by two

things: (a)standard legal doctrines that aim to

protect children’s best interests and (b) a judicial

willingness to couple the focus on the child’s

best interests with nontraditional def‌initions

of the family. Arguing that she had been an

involved parent throughout Casey’s life, that

Casey referred to her as ‘‘mommy,’’ and that she

was routinely listed on contracts, applications,

and the like as the child’s parent, the court

found Elise to be a ‘‘de facto parent’’—a person

unrelated to the child but who had nonetheless

fulf‌illed the role of parent. Reasoning that Casey

would have the same emotional attachments to

a de facto parent as would be true of a biological

parent, the probate court determined—and the

Massachusetts Supreme Court aff‌irmed—that

continued contact with Elise would be in Casey’s

best interests.

The differing outcomes in these cases are

instructive because the legal arguments used by

the nonbiological parents were largely the same:

Both asked the court to accept a conception of

‘‘parent’’ and ‘‘family’’ that was broader than

the traditional, two married biological parents

model; yet those arguments garnered decidedly

different results. This paper argues that this

difference stems from the fact that in one case the

judges gave consideration not only to def‌initions

of the family but to the children’s interests in

preserving their existing emotional attachments,

whereas in the other case, judicial focus on

the children’s emotional interests was absent. In

short, it was judicial attention to the children’s

interests, in combination with attention to family

def‌initions, that was fundamental to the f‌inal

outcomes. Such a proposition is consistent with

previous work that suggests that judicial reliance

only on family def‌initions produces inconsistent

legal results (Carbone, 2005; Holtzman, 2006,

2011; Meyer, 2006a, 2006b), whereas a focus

on children’s interests produces more consistent

outcomes for children (Holtzman, 2006, 2011;

Meyer, 2006a, 2006b).

This research explores this issue in more

depth by examining the relevant case law in eight

states over a 13-year period. It examines whether

legal arguments based on family def‌initions

or on children’s interests (or rights) are more

apt to produce legal outcomes that maintain

children’s attachment relationships. The f‌indings

have implications for legal decision making, and

they inform the literature on custody disputes,

def‌initions of the family, children’s rights, and

legal change.

MODERN FAMILY FORMS

Although the nuclear family has tradition-

ally consisted of two married adults and their

biological children, family forms have been

changing markedly over the last half cen-

tury (Glick, 1988; Kowaleski-Jones & Dunifon,

2004). Increasingly, heterosexual couples are

choosing to forgo, or at least postpone, marriage