Parental Rights in Diverse Family Contexts: Current Legal Developments*

• Author: Denise A. Skinner,Julie K. Kohler
• Published date: 01 October 2002
• Date: 01 October 2002
• DOI: http://doi.org/10.1111/j.1741-3729.2002.00293.x

2002, Vol. 51, No. 4 293

Special Collection

Parental Rights in Diverse Family Contexts:

Current Legal Developments*

Denise A. Skinner** and Julie K. Kohler

Here, we review case law as it applies to parental rights. Specif‌ically, we examine two issues: (a) Who has been awarded the right to

parent? and (b) What rights have been bestowed to parents? The review demonstrates how family law in the United States ref‌lects and

perpetuates society’s ambivalence about family structure and, subsequently, parental rights and responsibilities. On the basis of this

analysis, we recommend a broadened legal perspective that not only communicates society’s expectation of responsible parenting but,

in addition, gives legal recognition to diverse family forms in which members carry out these responsibilities.

Changing family demographics in the United States have

created new contexts for those assuming responsibility

for childrearing. Growing numbers of adoptive, steppar-

ent, grandparent-led, heterosexual cohabiting, gay and lesbian-

headed families, and families formed through new reproductive

technologies call into question assumptions regarding who has

the right and responsibility to parent children—a role that his-

torically has been entrusted to biological mothers and fathers.

Indeed, although the rights of biological parents to assume the

parental role are quite clear in most judicial decisions and state

and federal statutes, other family members do not have such

clear standards by which to ‘‘parent’’ or maintain meaningful

relationships with related children. Thus, changing family struc-

tures have fueled new legal debates over the rights and respon-

sibilities of parents and other family members. Although these

debates are the outgrowth of somewhat different social concerns,

underlying all is the basic question of who is responsible for

childrearing and what are their rights in assuming this respon-

sibility.

Our purpose here is to review case law as it applies to pa-

rental rights. We specif‌ically address two questions: (a) Who has

been awarded the right to parent? and (b) What rights have been

bestowed to parents? The issues inherent in these questions are

fundamental to contemporary family life. They play an important

role in def‌ining the basic question of what constitutes a family

and also inf‌luence how families interact with the larger systems

in which they live. Our review demonstrates how family law in

the United States has ref‌lected and perpetuated society’s ambiv-

alence about family structure and, subsequently, parental rights

and responsibilities. On the basis of this analysis, we recommend

a broadened legal perspective that communicates society’s ex-

pectation of responsible parenting and also gives legal recogni-

tion to diverse family forms in which members carry out these

responsibilities.

Who Has the Right to Parent?

The confusion in many legal decisions over parental rights

and responsibilities can be explained in part by the existence of

*An earlier version of this article was presented at the 1998 National Council on

Family Relations conference in Milwaukee, WI. The authors gratefully acknowledge Elaine

A. Anderson and Jan Hare for their comments on this article.

**Department of Human Development, Family Studies, and Community Educational

Services, University of Wisconsin–Stout, 118 HE Building, Menomonie, WI 54751 (skinnerd@

uwstout.edu).

Key Words: diversity, family, law, parental rights.

(Family Relations, 2002, 51, 293–300)

nontraditional family forms and the legal paradigm in which

those rights and responsibilities are interpreted. United States

family law, which emanates from a Christian-Judaic value sys-

tem, historically def‌ined parental rights and responsibilities with-

in the conf‌ines of the married, heterosexual, monogamous cou-

ple. The erosion of marriage as an ‘‘exclusive, special,protected

status’’ within which to bear and rear children is strikingly evi-

dent in the growing legal recognition of unmarried individuals

and their children (Younger, 1996, p. 499). Today, unmarried

parents generally are granted the same constitutional rights as

married parents in terms of participating in hearings on custody

and adoption of children (Younger). The children born to such

partnerships enjoy substantial entitlements such as support, in-

heritance, and welfare. Along with the growth of other nontra-

ditional family forms in which children are reared, this rise in

unmarried parenting is forcing a reexamination of the tenets on

which parental rights are based (Bartlett, 2001; Young, 1998;

Younger).

There are two rules in family law that are used in determin-

ing parental rights. The f‌irst gives biological parents fundamental

rights as an entitlement of procreation. Although this fundamen-

tal right to bear children recently was challenged by the Wis-

consin Supreme Court (see Wisconsin v. Oakley, 200l), the pre-

mise of the fundamental rights of biological parents continues to

be a basic tenet of family law. The second rule establishes par-

enthood as an exclusive status in that the law recognizes only

one set of parents for a child at any one time. This premise limits

the rights of others, regardless of their functional roles in the

child’s life. (Bartlett, 2001; Younger, 1996).

Parental Rights Doctrine

The f‌irst rule, frequently referred to as the ‘‘parental rights

doctrine,’’ is based on a series of Supreme Court cases in which

the rights of biological parents have been accorded constitutional

status. Parental liberty as a fundamental right found a secure

place in the U.S. constitutional jurisprudence beginning with a

frequently cited Supreme Court case from the 1920s. In the case

of Meyer v. Nebraska (1923) the court rejected the arguments

that the government’s view of what led children to become pa-

triotic and good citizens should prevail over the parents’ view.

Nebraska law, which prohibited the teaching of a foreign lan-

guage prior to 8th grade, was overturned, giving parents the right

to have their children learn a foreign language. Two years later,

in Pierce v. Society of Sisters (1925), the court examined an

Oregon state statute compelling parents to send their children to

public schools from ages 8 to 16, essentially banning private

education. The court held in this instance that state authority

must yield to the rights of the parents and essentially aff‌irmed