The “Family Relations” Doctrine: Extending Supreme Court Precedent to Custody Disputes Between Biological and Nonbiological Parents*

Published date01 October 2002
AuthorMellisa Holtzman
Date01 October 2002
2002, Vol. 51, No. 4 335
Special Collection
The ‘‘Family Relations’’ Doctrine: Extending Supreme Court
Precedent to Custody Disputes Between Biological and
Nonbiological Parents*
Mellisa Holtzman**
Custody disputes between biological and nonbiological parents typically are decided on the basis of one of two custody doctrines: the
parental rights or the best interests doctrine. Each of these standards has faced criticism and an extensive amount of legal and social
science literature is devoted to pitting these doctrines against one another. Other scholarly work is focused on proposing alternatives
to these doctrines. Here the benef‌its and shortcomings of the two doctrines are reviewed and previously proposed alternative standards
are evaluated. Through a detailed analysis of 5 Supreme Court cases, an entirely new doctrine—the ‘‘family relations’’ doctrine—is
suggested. The family relations doctrine gives considerable weight to the child’s current and past relationships and his or her ‘‘per-
ceived’’ family. It protects the child’s present psychological reality while simultaneously safeguarding both the child’s and the adult’s
interest in maintaining past relationships, or possibly even affecting future ones.
In the early 1960s, research by Bowlby on social attachment
theory started to get recognition within family law (Bowlby,
1969, 1973, 1980; see also Ainsworth, 1962). In 1973 Gold-
stein, Freud, and Solnit released a book that was premised on
the tenets of social attachment theory, which ultimately had a
profound impact on family law (Taub, 1984). Beyond the Best
Interests of the Child suggested that in order to truly protect the
best interests of children involved in custody disputes, courts
needed to go beyond their typical analysis of determining the
child’s best interests based on the income, education, available
housing, available medical insurance, and so forth of the com-
peting adults. Instead, courts needed to place the child with the
adult to whom he or she was psychologically attached—that is,
with the person to whom the child looked for daily emotional
care (Goldstein, Freud, & Solnit, 1973).
Goldstein, Freud, and Solnit’s focus on the importance of
psychological attachments merged with the growing research on
social attachment theory and a burgeoning literature on the in-
tersection of law and social science to stimulate an important
change in custody disputes between biological and nonbiological
parents. Courts began to decide these disputes by considering
which of the adults might best serve the child’s interests, rather
than automatically placing custody with the biological parent
(Davis, 1987). However, doing so did not initiate a long-term
trend toward using only the best interests standard in these dis-
putes; instead, it intensif‌ied the conf‌lict between children’s rights
and parents’ rights by aggravating the conf‌lict between the two
custody doctrines. The implications of this conf‌lict are discussed
here and two previously proposed alternative custody doctrines,
the parental preference and the psychological parent doctrines,
are considered. Because even these alternatives fall short of pro-
tecting both children and adults in a fair and consistent manner,
an entirely new custody doctrine is discussed, and the foundation
for this new doctrine is found in the rulings of f‌ive recent Su-
preme Court cases.
*This paper was presented at the 2001 American Sociological Association Meetings
in Anaheim, CA.
**Department of Sociology, Ball State University, Muncie, IN 47306 (mkholtzman@bsu.
Key Words: child custody, family, law, parental rights.
(Family Relations, 2002, 51, 335–343)
Although the phrase ‘‘custody dispute’’ typically evokes im-
ages of two divorcing, biological parents engaged in a bitter
court battle, each vying for custody of their child, custody dis-
putes also arise between biological and nonbiological parents.
The term ‘‘nonbiological parent’’ refers to anyone who is not
the biological parent of a child, but who has nonetheless acted
as a parent to the child. Nonbiological parents can be distin-
guished from persons who are ‘‘third parties’’ to a family unit,
such as babysitters, close family friends, and even grandparents
with whom the child has never lived. Nonbiological parents have
lived with and economically and emotionally provided for the
child on a daily basis. Stepparents, gay and lesbian coparents,
foster parents, preadoptive or adoptive parents, and extended
family members, such as aunts and uncles or grandparents with
whom the child has lived, are nonbiological parents if they have
functioned as a parent to a child who is not their biological
Custody disputes between biological and nonbiological par-
ents typically are decided based on one of two custody doctrines:
the parental rights or the best interests doctrine. The parental
rights doctrine holds that biological parents have a fundamental
right to the custody and control of their children and this right
cannot be disturbed except for the most cogent reasons (typically
parental unf‌itness). In contrast, the best interests doctrine asserts
that custody decisions should be made with the child’s best in-
terests in mind, such that the person who is best able to meet
the child’s physical and emotional needs should be awarded cus-
tody (Salthe, 1990). Importantly, an underlying tension exists
between these two doctrines, thereby causing a signif‌icant
amount of doctrinal conf‌lict in custody disputes involving bio-
logical and nonbiological parents. The best interests doctrine is
fundamentally about protecting the welfare of children, whereas
the parental rights doctrine is fundamentally about protecting the
rights of adults within the conf‌ines of the traditional family (e.g.,
biological parents raising their biological children). Children’s
interests and adult’s rights do not necessarily have to conf‌lict. In
fact, for the vast majority of children their interests and the par-
ents’ rights coincide; biological parents have a right to the cus-
tody of their children, and it is in the children’s best interests to
be in the care of their biological parents (see Santosky v. Kramer,
1982). However, in situations where children have developed
strong psychological attachments and parental-type relationships

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