New Article: Psychological Parenthood

Psychological Parenthood (with Anne Dailey and Doug NeJaime), Minnesota L. Rev. (forthcoming 2022).

Family law in the United States is governed by an assortment of legal doctrines and policies that often undermine, and sometimes sever, the relationships between children and the adults with whom children are most closely bonded. For example, the “best interests of the child” standard, which has long governed a host of legal determinations such as custody, offers only a vague and indeterminate guideline for decision making, an approach that risks undervaluing the importance of children’s relationships to close caregivers. Similarly, courts and commentators commonly assert that the federal Constitution provides special protection to biological parent-child relationships, despite the fact that biology as a category excludes children’s bonds with many LGBTQ parents and other nonbiological parental caregivers. Finally, the United States lacks a national legal commitment to economic support for vulnerable children and families, leaving poor children and parents without resources and at risk of family separation. When the state fails to support and protect relationships between children and the individuals who provide them with parental care, children are likely to experience developmental harms with potentially life-long damage to their physical and mental health.

This Article proposes and elaborates what we term the psychological parent principle, which would replace current inadequate and indeterminate standards with a clear guideline focused on the protection of relationships between children and the individuals who provide them with consistent, predictable, and emotionally-invested parental care. The psychological parent principle is explicitly grounded in both developmental science and democratic values. The psychological parent principle reflects the scientific finding that the parent-child relationship is critical to human development. The principle aims to provide an overarching guideline for law, one that protects the relationship between the child and the psychological parent, with due attention to normative considerations including equality, social inclusion, and democratic self-determination. As this Article shows, reorienting law and policy around the psychological parent principle would be especially valuable for Black, LGBTQ, low-income, and other marginalized parents and children who disproportionately suffer from the failure of the state to recognize and support parental caregiving bonds.

In providing a new, overarching guideline for family law, the psychological parent This Article illustrates how the psychological parent principle would operate by suggesting reforms in three areas of law that are foundational to children’s lives—social welfare, parentage, and custody.

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