The Psychological-Parent and De Facto-Parent Doctrines: How Should the Uniform Parentage Act Define "Parent"?

• Author: LindsyJ. Rohlf
• Position: J.D. Candidate, The University of Iowa College of Law
• Pages: 02

J.D. Candidate, The University of Iowa College of Law, 2009; B.A., Iowa State University, 2002. Thanks to the editors and student writers of Volumes 93 and 94 of the Iowa Law Review for their hard work on this Note. Thanks also to my parents, John and Sheryl Rohlf, for their support of all of my endeavors.

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I Introduction

The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child's moral and physical health are not endangered. Public authorities cannot improve on nature.¹

In the past few decades, the concept of "family" in the United States has changed radically. No longer is the "traditional family" of one father, one mother, and their biological children seen as the norm.² More children than ever before live in arrangements that include only one or neither of their biological parents.³ Since family law is primarily a state issue, there have been a wide variety of responses to these changes in the family structure.⁴The fact that many people disagree about fundamental ideas of how the law should respond to these changes also contributes to the diversity.⁵ One area in particular that lacks uniformity is child visitation. This Note addresses one aspect of this area-third-party rights to petition for child visitation.

Many adults who are not biologically related to the children in their lives are increasingly claiming visitation rights to those children after the adult relationships that brought the children into their lives end. For example, a man who breaks up with his live-in girlfriend and wants to continue seeing his ex-girlfriend's daughter on a regular basis would be a third party seeking child visitation. The common law and state statutes generally have not given these third parties the right to bring suit for Page 694 visitation against the wishes of a fit biological or adoptive parent.⁶ As a result, third parties have had to search for creative ways to find such a right.⁷One such method involves the use of the psychological-parent and de facto-parent doctrines. These doctrines effectively redefine the term "parent" to go beyond biological and adoptive parents, thus permitting third parties to petition for visitation. Many proponents of these doctrines are pushing for their codification in the Uniform Parentage Act ("UPA"). This Note argues against the addition of these doctrines and instead suggests limiting the definition of "parent" to biological and adoptive parents, primarily because the doctrines violate the constitutional rights of fit biological and adoptive parents.

Part II of this Note surveys the varied state approaches to requests for third-party visitation. First, Part II considers the different types of statutes that states have enacted to address the issue. It then looks at the psychological-parent and de facto-parent doctrines as judicial responses to third-party-visitation issues. Part III of the Note explores the development in U.S. Supreme Court jurisprudence of the fundamental rights of parents in this country to direct the upbringing of their children-the rights that the psychological-parent and de facto-parent doctrines threaten. As a potential guide for states in protecting parental rights while crafting third-party-visitation statutes, Part IV examines the history and purposes of the UPA. Finally, Part V analyzes the potential ramifications of current efforts to include the psychological-parent and de facto-parent doctrines in the UPA. The Note concludes that such a change would violate the constitutional rights of parents, create a slippery slope for courts, and not be in the best interests of children. In conclusion, the Note advocates for a definition of "parent" that is explicitly limited to biological and adoptive parents.

II Third-Party-Visitation Issues

In an ideal world, a child would grow up in the home of his or her biological mother and biological father from birth to the age of majority. The world that we live in, however, is not ideal, and as such, children are raised in a variety of environments that involve third parties (i.e., non-natural parents). This Note defines "natural parent" as a biological or adoptive parent. The law recognizes an adoptive parent as the equivalent of a biological parent.⁸ Page 695

In general, courts are not called on to intervene in circumstances that involve third parties because the adults involved with the children work it out among themselves. This Note does not address or criticize arrangements that natural parents might have with third parties.⁹ In fact, such relationships generally are highly beneficial to children and should be encouraged.¹⁰ Nor does the Note claim that only natural parents can be good, caring parents. This Note discusses only the limited issue of how the law should respond when third parties desire to obtain visitation rights¹¹against the wishes of the fit natural parent.¹² Because these situations have become more common due to the breakdown of the traditional American family, states have responded with a variety of legislative and judicial actions. This Note next explores those responses.

A Third-Party-Visitation Statutes

At common law, courts consistently upheld the right of parents to be free from state interference in the upbringing of their children.¹³ Thus, courts denied relief to third parties and held that "[a] parent is under no legal obligation to permit a child to visit [third parties] in the absence of a statute."¹⁴ In response to the common law, grandparents-the traditional third party-lobbied state legislatures to change this policy in the last half of Page 696 the twentieth century.¹⁵ As a result, all fifty states now have some form of third-party-visitation statute.¹⁶ The Supreme Court recognized in Troxel v. Granville that these statutes aim to protect children by defending their relationships with third parties, but, as the Court stated, this protection comes with a cost that includes infringing on the parent-child relationship.¹⁷

States have enacted three basic types of third-party-visitation statutes.¹⁸The first type allows third-party visitation only when a disruption in the nuclear family has occurred, such as divorce or death.¹⁹ This type of statute is the most common; about thirty states have enacted statutes that fall in this category.²⁰ For example, Nebraska's statute gives grandparents the right to petition for visitation only if one or both of the parents die, the parents get divorced, or the paternity of the child is established between two unmarried parents.²¹

The second type of statute, present in about fifteen states, awards visitation rights to grandparents when doing so is in the best interests of the child or when the court determines that it is appropriate, which can happen whether or not there is a disruption in the nuclear family.²² For example, South Dakota allows a court to award visitation to a grandparent if it is in the best interests of the child and either (1) such visitation would not interfere with the parent-child relationship or (2) the parent has not given the grandparent a reasonable opportunity to visit the child.²³

The third, and least common type of visitation statute, gives visitation rights to any third party who has a significant relationship with the child.²⁴Only a handful of states have passed this type of law,²⁵ and out of those, Page 697 courts have recognized two of them as unconstitutional, one facially and one as applied.²⁶ For example, oregon gives any person who has established significant "emotional ties" with a child the right to petition the court for visitation.²⁷ This last category of visitation statutes is the only one that effectively gives unrelated third parties the right to petition for visitation as "psychological parents."²⁸

The issue with all three types of third-party-visitation statutes is not whether to show deference to natural parents, but "under what conditions, as determined by whom, that deference should be abandoned."²⁹ As the statutory schemes above demonstrate, states vary on the level of deference Page 698 that they give to natural parents.³⁰ Since very few states have adequate statutory relief available to most third parties seeking visitation, many third parties have turned to the courts for help. In response to this, some courts have created doctrines to give these third parties the right to petition the courts for visitation.³¹ These doctrines redefine "parent" to include third parties who are not legal parents but who qualify as "psychological" or "de facto" parents.³² This gives these "psychological parents" standing to bring suit. This Note next discusses these doctrines.

B The Psychological-Parent and De Facto-ParentDoctrines

1. Defining the Doctrines

The psychological-parent doctrine, an equitable theory, is a judge-made creation that allows courts to recognize a person who has a parent-like relationship with a child as a "psychological" parent and, thus, as someone who has standing to seek visitation.³³ In its most extreme reading, the doctrine gives any adult the right to claim parental rights to any child by showing that the adult has a "bonded, dependent . . . relationship" with the child and...