NeJaime, Alstott and Dailey, ‘Psychological Parenthood’

Family law in the United States is governed by an assortment of familiar 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 …

NeJaime, Douglas and Alstott, Anne L and Dailey, Anne C, Psychological Parenthood (October 18, 2021). Minnesota Law Review, volume 106, 2022, forthcoming.

First posted 2021-11-19 16:00:14

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