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.

Mothering in a Pandemic

In this piece in the Boston Review, I point out the ordinary but tragic choices facing parents — mostly mothers — as they care for children during the pandemic. Mothering work has been mostly invisible during the COVID crisis, as it usually is. But the pandemic has made the job both harder to do (with schools and day care closed) and more socially important. Children are suffering tremendous (and often unacknowledged) stress right now, and consistent, hands-on parental care is the best buffer.

Developing Families: Law Meets the Science of Child Development

Science and law are not obvious partners.  Scientists seek to discover the truths of the natural world, while lawyers interpret intricate rules enacted by government.  Practicing physicians treat the mind and body, while practicing lawyers protect clients from the power of the state.  Over the past two years, I’ve been involved in creating a new research collaborative between the Yale Law School and the Yale Child Study Center, which has brought law and science together in a common project:  to improve children’s developmental chances by articulating and advocating for public policies that reflect the best scientific understanding of what children need.  

            Begun in the summer of 2017, the ongoing collaboration has proved fruitful in generating original research and policy proposals.  Although we initially spoke different professional languages, we share a common core of concern with improving children’s life chances.  As we worked together, we discovered that some areas of law and public policy — family law, child welfare, and special education – are explicitly open to input from science. That is, in these areas of law, more so than (say) property or contract law, lawmakers express legal standards in terms of children’s best interests, well-being, and development. That makes these areas of law unusually ripe for – and able to benefit from – scientific insight. 

            Concretely, we have hosted two conferences on child development and law and have produced a book draft, Developing Families:  Science-Based Innovations to Support and Promote Early Relationships. Our draft book lays out what science has discovered about the impact of trauma, the importance of attachment, and the potential for resilience. Our legal and policy analysis builds on those insights to recommend a range of public policy initiatives centered on building (or re-building) two generations.  We also recommend reforms in the laws governing immigration detention, child welfare, and child custody.