April 01, 2018 Parentage

De Facto Parentage and the Modern Family

By: Courtney G. Joslin

What families look like has changed dramatically over time. Historically, most children were raised in intact, different-sex, marital families. Indeed, even in 1960, almost three-quarters (73%) of children in the United States were living in this family structure.

Today, this is no longer the case. Fewer than half of all children here are living in intact, different-sex, married households. See Gretchen Livingston, Fewer than half of U.S. kids today live in a ‘traditional’ family, Pew Research: Fact Tank (Dec. 22, 2014), http://www.pewresearch.org/fact-tank/2014/12/22/less-than-half-of-u-s-kids-today-live-in-a-traditional-family/.This reality is the result of a confluence of developments. Fewer adults today are marrying. More children are born to unmarried women. Many children born to married couples will experience divorce. June Carbone & Naomi Cahn, Marriage Markets: How Inequality is Remaking the American Family 1 (2014).

Because of these and other changes in family form and life, a significant percentage of children—both marital and nonmarital—will be parented by people who are not connected to them through marriage or biology. These people may be stepparents, nonmarital partners of an existing parent, or extended family members. Experience and social science confirm that children rely on these caregivers for love and affection and to attend to their physical needs. Because functional parents can be so important to the lives of children, termination of these relationships can “prove devastating to [a]   child and [c]ould result in long-term, adverse psychological effects to [a] child.” In re Custody of C.C.R.S., 892 P.2d 246, 258 (Colo. 1995) (en banc). As the Vermont Supreme Court recently put it: “It is hard to imagine how … an approach that allows  for a complete and involuntary severing of a lifelong parent-child relationship could possibly promote children’s welfare. In many cases, the consequences of such a rule would be nothing short of tragic.” Sinnott v. Peck, 2017 VT 115, ¶ 30, No. 2015-426, 2017 WL 5951846, at *1 (Vt. Dec. 1, 2017).  

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