State Lawmaking on Federal Constitutional Childcare Parents: More Principled Allocations of Powers and More Rational Distinctions

Publication year2022



Jeffrey A. Parness(fn*)


Unlike other federal constitutional rightsholders, a parent with the right to exercise "care, custody, and control" over a child is defined by state lawmakers. While federal constitutional childcare parents may be defined by state constitutional law precedents, most often there are combinations of state statutes as well as common law precedents that may be tethered to state statutes. The balance of the General Assembly (or the state legislature) and untethered judicial authority over childcare parentage typically varies both interstate and intrastate depending upon how childcare parentage is established. At times, a childcare parent is defined by biological ties (real or imagined), by contracts, or by earlier histories of significant parental-like acts.

When determining whether to recognize untethered childcare parentage, state courts too frequently rule without considering key principles. Further, when applying state statutes defining federal childcare parents, state courts too frequently rule without recognizing equality issues involving unwarranted distinctions between those acting in parental-like ways. State cases on childcare parentage have proliferated in the last few decades due to both changes in human conduct (including increased marital dissolutions, openly acknowledged same sex couples, cohabiting couples who have children, and grandparents with primary-if not exclusive-childcare duties for the grandchildren) and in technology (including genetic testing related to biological parenthood and new methods, and increasing availability, of assisted reproduction).

This Article reviews how and why there is deference on federal constitutional childcare parentage to state lawmakers; how this deference has not yielded many state constitutional law precedents; the varied state statutory and common law approaches to recognizing federal constitutional childcare parents; certain key principles which should guide state legislatures and courts in determining who within a state should define childcare parents; and how equality demands sometimes require courts to invalidate irrational approaches to child-care parentage.

The most important consideration regarding guiding principles is that state high courts generally need to defer to state legislators when state statutes clearly define parentage. When there are no such definitions, common lawmaking should reflect related prevailing public policies, like protecting developed and loving familial relationships.

Of course, deference to state legislators is not warranted where there are state constitutional demands on familial privacy, even if founded on imprecise constitutional provisions like due process. State judicial deference to explicit General Assembly definitions of childcare parents is also unwarranted where there exist irrational distinctions between those aspiring to attain parental childcare status. The "sheerest formalism" should not distinguish between would-be parents.(fn1)

State legislators need to respond quickly when nonconstitutional common law judicial precedents on childcare parents, whether or not tethered to statutes, fail to reflect public sentiments. Further, state legislators need to respond quickly when courts refrain from establishing nonconstitutional common law precedents on childcare parents where new statutes are needed to address voids in written laws. Additionally, legislators need to respond quickly when statutory childcare parentage distinctions are stricken.


State constitutional, statutory, and common law rights are subject to federal constitutional (and other federal) law supremacy, as federal laws are "the supreme Law of the Land," binding upon "Judges in every State."(fn2) Per the United States Constitution, any federal constitutional rightsholders, the substance of the rights, and rights enforcement are subject to both federal judicial and legislative authority, with variations in the balance sometimes recognized expressly in constitutional text.

Within the federal constitutional Bill of Rights, for enumerated rights like speech, press, and religion, there is nothing expressly said about affirmative Congressional authority (though it constrains that authority).(fn3) For the civil rights amendments on involuntary servi-tude,(fn4) equal protection,(fn5) due process,(fn6) and voting,(fn7) the federal Constitution provides that Congress has the power "to enforce by appropriate legislation."(fn8)

Whether or not Congress has any say on enforcement, United States Supreme Court precedents largely determine both federal constitutional rightsholders and the nature of the rights they hold, be they enumerated or unenumerated. As to rightsholders, the Court is occasionally given some direction by the Constitution itself, as certain rights are held by "the people,"(fn9) while others are held by "citizens"(fn10)or by "person[s]."(fn11) At other times, including when rights spring from limits on governmental authority (such as no abridgement of free speech or religious practice),(fn12) there is no explicit direction.(fn13) United States Supreme Court precedents on federal constitutional right-sholders sometimes surprise, as when free speech rights were accorded to corporations.(fn14)

For federal constitutional rights generally, the rightsholders, the rights held, and the enforcement avenues do not vary much interstate. So, there are few differences between the states on the federal constitutional rights of those "accused" criminally,(fn15) those contesting illegal searches,(fn16) and those with family-related privacy interests in abor-tion(fn17) and marriage.(fn18) Yet for one federal constitutional right, the rightsholders-though neither the protections afforded nor their en-forcement-dramatically differ interstate. The relatively uniform federal constitutional approaches to the substantive(fn19) and enforcement(fn20)attributes of parental childcare rights contrast sharply with the deference to state lawmaking in defining the parents with such rights.

Broad state lawmaking discretion on defining federal constitutional childcare parents emanates, in particular, from three major United States Supreme Court precedents. One is Lehr v. Robertson,(fn21) where an unwed biological father of a child born of sex to an unwed mother sought to participate in (and have an opportunity to veto) that child's later adoption proceeding pursued by the mother's new hus-band.(fn22) There, the Court recognized that state lawmakers could vary their norms on denying such a father any participation rights. While the Court recognized that the "intangible fibers that connect parent and child" via biology "are sufficiently vital to merit constitutional protection in appropriate cases," the Court concluded that in "the vast majority of cases, state law determines the final outcome" when resolving "the legal problems arising from the parent-child relation-ship."(fn23) Before and since Lehr, American states have varied widely on the participation rights of unwed biological fathers in formal adoption proceedings.(fn24)

Another precedent is Michael H. v. Gerald D.,(fn25) where an unwed biological father of a child born of sex to a married woman sought to undo a state law marital paternity presumption favoring the hus-band.(fn26) The Court effectively ruled that California could deny, as it then wished, the biological father any opportunity interest in establishing childcare parentage, at least where the state desired to promote the married couple's wish to remain an intact nuclear family.(fn27) While California public policy has since changed,(fn28) in Pennsylvania a comparable biological father can be thwarted in pursuing legal parentage by an intact nuclear family.(fn29) Both before and since Michael H., American states have varied widely on establishing and disestablishing marital parentage presumptions.(fn30)

The third United States Supreme Court precedent is Troxel v. Granville,(fn31) where the attributes of parental childcare rights were at issue, not the norms for attaining parental childcare rights.(fn32) Here, grandparents sought a court order on grandparent-grandchild visits over parental objections.(fn33) In limiting judicial opportunity to override parental desires, a few opinions of a splintered court recognized broad state lawmaking discretion on defining parentage and establishing parental-like classes. There was mention of child visitation laws ben-efitting third parties (i.e., nonparents) via "gradations,"(fn34) as well as of possible "de facto" parenthood,(fn35) a parentage establishment norm involving neither biological ties nor formal adoption.(fn36) Before and since Troxel, American state de facto (and comparable) statutory and common law parentage have varied widely in defining who can become federal constitutional childcare parents.(fn37)

While state lawmakers have broad leeway, their discretion to define federal childcare parents is not boundless. A few United States Supreme Court precedents limit state definitional...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT