Parental Rights in Diverse Family Contexts: Current Legal Developments^*

Abstract

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. C hanging family demographics in the United States have created new contexts for those assuming responsibility for childrearing. Growing numbers of adoptive, stepparent, grandparent-led, heterosexual cohabiting, gay and lesbianheaded 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 historically 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 structures have fueled new legal debates over the rights and responsibilities 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 responsibility.Our purpose here is to review case law as it applies to parental 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 ambivalence 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 expectation of responsible parenting and also gives legal recognition to diverse family forms in which members carry out these responsibilities.

Balancing family members’ interests regarding stepparent rights and obligations: A social policy challenge*

“…Stepparents must show extraordinary circumstances to be granted custody of stepchildren; they must prove their parental fitness, prove that the other parent is unfit, and prove that placement with them (the stepparent) is in the best interest of the child (Ramsey & Abrams, 2001;Skinner & Kohler).…”

“…(H) Skinner and Kohler (2002) have argued for establishing a legal structure that facilitates collaborative relationships, even between multiple adults in nontraditional or extended kinship networks. (I) Uniform Adoption Act open adoption provision (UAA; see Mahoney, 1997Mahoney, , 1999 aspires to increase the number of (I) Visher (personal communication to D. Samuels, Esq., see DuranAydintug & Ihinger-allman) has…”

“…The lack of consistent, accepted societal parenting expectations for stepfamilies and obstacles confronting stepparents in even functional family relationships have prompted legal and social science scholars to advocate for policy reforms clarifying stepparent rights and responsibilities (Skinner & Kohler, 2002).…”

Transforming the Discussion About Diversity, Policies, and Law

“…Kinship care, a protective factor and historical tradition, has been overused by the child welfare system, and it has overburdened caregivers who are poorer or aging adults, such as grandparents. Family reunification is an unintended consequence of the overuse of kinship care placements, undermining the parental rights doctrine that holds that biological parents have a fundamental right to parenthood via U.S. Supreme Court rulings and as protected by the 1st, 5th, 9th, and 14th Amendments (for a summary, see Skinner & Kohler, 2002). Furthermore, racial disproportionality in the child welfare system, while offering alternative viewpoints and approaches for practitioners and researchers, is exposed by Harris and Skyles.…”

“…As expected, the best-interestsof-the-child standard and clear and convincing evidence were used to determine whether to legally sever parental rights or to reunite families. Justices rendering foster care decisions did not use the strict scrutiny test, which had been used in other U.S. Supreme Court decisions about fundamental rights (HLR, 1980;Henderson, 2005;Henderson & Moran;Skinner & Kohler, 2002). Using a lower bar-a lower legal test-makes children and parents involved in the foster care system more vulnerable, especially families headed by parents with cognitive and mental challenges.…”