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December 03, 2019 Feature

Moving Beyond Troxel: The Uniform Nonparent Custody and Visitation Act

By Jeff Atkinson & Barbara Atwood

Introduction

The Uniform Law Commission (ULC) gave final approval in July 2018 to the Uniform Nonparent Custody and Visitation Act (UNCVA), a statutory framework for resolving conflicts about third-party access to children.1 In this controversial area, courts and legislatures have taken varied approaches to accommodating the constitutional liberty of parents with the state’s duty to protect children’s welfare. The enigmatic case of Troxel v. Granville2 recognizes a baseline presumption favoring parental authority over children’s custody and care but provides no real guidance for determining when deference to parental decision-making is not required. The UNCVA moves beyond Troxel to balance, within constitutional limits, the interests of children, parents, and nonparents with whom children have a close relationship.

All children can form significant bonds with others who are not legal parents, but that likelihood increases for children who live with one parent and, perhaps, a stepparent, cohabitant, or extended family member. Demographics indicate that many children in the United States live with nonparents during all or part of their childhood. In 2018, the U.S. Census Bureau reported that there were 73,741,000 children in the United States under age 18.3 Of that number, about two-thirds lived with both parents, but the remainder had a range of living situations, including residing with a single parent and with grandparents.4

When close and beneficial relationships exist between nonparents and children, a nonparent’s lack of legal parental status may be meaningless from the child’s perspective. Instead, the nonparent may be of fundamental importance in the child’s life, particularly if the person has been engaged in coparenting.5 Significant relationships also may develop between nonparents and children who, while never residing together, have had regular contact. The vital role of nonparents in children’s lives has been accentuated by the opioid epidemic. With 2.1 million adults experiencing opioid addiction in this country, many relatives have stepped forward to care for children because of their parents’ addictions.6 The legal rights of such relative caregivers remain in limbo in many situations.

Disputes between parents and nonparents can arise in a range of contexts, but they typically occur when a parent opposes continued contact by the nonparent and the nonparent seeks relief in court. In grappling with these conflicts, state legislatures have come up with varied standards, often imposing threshold requirements that have little to do with children’s interests or the relationship between the nonparent and the child.7 State courts, in turn, have disagreed about the core constitutional question; namely, what showing is required to overcome a parent’s objection to nonparent contact. Some courts have concluded that the nonparent must always show that the child will suffer harm if the requested access is not granted.8 Others have reasoned that a showing of harm is not absolutely necessary and that the nonparent can meet her burden with other compelling evidence.9 Courts also disagree about the burden of proof required for a nonparent to overcome the presumption favoring parental authority.10 Today, two decades after Troxel, state courts still struggle to balance the constitutional rights of parents with children’s interests.11

The Uniform Law Commission took up this drafting project in 2015 to respond to the need for a coherent analytical framework.12 Although the underlying structure of the Act shifted as the drafting progressed, the long-term goal was to clarify the constitutional parameters of disputes between parents and nonparents while maintaining a central focus on children’s interests.13 An ongoing question was whether to create a special status for grandparents,14 a position that commentators have advocated as furthering children’s interests.15 Although members of the Drafting Committee were sympathetic to grandparents’ claims, the ultimate conclusion was that grandparent status by itself would not constitute a sufficient basis for overriding a fit parent’s decision in light of Troxel.16

As detailed in the following pages, the UNCVA recognizes two categories of nonparent—a “consistent caretaker” of the child and an individual with a “substantial relationship” with the child—and provides a blueprint for each category in seeking custody or visitation over parental objection.17 Both categories under the UNCVA are held to a clear-and-convincing-evidence burden of proof, and the Act expressly recognizes a presumption that a parent’s decision about custody and visitation is in the child’s best interests.18

The American Law Institute has embraced a somewhat similar approach in its draft Restatement of Law: Children and the Law.19 The draft Restatement uses terminology that differs from the UNCVA but employs analogous categories of nonparent (“significant relationship” and “de facto parent”), imposes a clear-and-convincing-evidence standard, and requires a showing of harm unless a nonparent establishes de facto parent status.20 Unlike the UNCVA, the draft Restatement applies heightened requirements for obtaining nonparent custody as compared to visitation.21 The UNCVA, in contrast, applies the same standard to both custody and visitation requests since the dividing line between them is often blurred. Still, a nonparent who has a substantial relationship with the child and seeks legal custody under the UNCVA will have to show by clear and convincing evidence that continued parental custody will harm the child—a demanding showing that in practical terms may parallel the draft Restatement’s approach.22

As an important screening mechanism, a nonparent’s petition under the UNCVA must make a prima facie showing that the petitioner is entitled to relief.23 The drafters understood that litigation itself is an intrusion on parental authority. At the same time, the Act acknowledges that on a sufficient showing, a court may determine that the parent’s decision is not in the child’s best interests or will result in harm to the child and that a child’s welfare will be promoted by continuing the child’s relationship with a nonparent.24 The factors relevant to best interests are spelled out in detail to supplement a state’s existing best interests formulation.25

As with other ULC projects in the family law arena, an underlying assumption was that uniformity in the standards governing parent/nonparent disputes would serve a valuable function by providing more certainty and predictability to people’s lives as families migrate from one state to another. The UNCVA offers a detailed and straightforward framework for resolving parent/nonparent disputes consistent with constitutional standards. After almost two decades of erratic and conflicting judicial interpretations of the Troxel plurality, states that enact the UNCVA will provide their courts with much-needed guidance.26

I. History

Prior to the U.S. Supreme Court’s decision in Troxel in 2000, all states had enacted statutes providing for visitation for grandparents or other nonparents.27 New York appears to have been the first state to have enacted such a statute in 1966.28 The last state to enact a grandparent statute prior to Troxel was Nebraska in 1986.29

Most statutes give rights to grandparents or great grandparents. Some statutes give rights specifically to stepparents or siblings, and a few statutes use a more general term such as “any person.”30 The statutes commonly give grandparents (or other nonparents) the right to seek visitation following a disruption in the family or a circumstance involving a departure from the traditional family structure of two married parents living together with their children. The circumstances that give standing for nonparents to seek visitation include divorce or separation of the parents, death of a parent, or a child born out of wedlock. In addition, several states give nonparents a right to seek visitation if the child has lived with the nonparent a certain period of time, generally between six and twelve months.31

The typical statute pre-Troxel allowed a court to order visitation upon a showing that it was in the best interest of the child to do so. Giving deference to the parents’ preferences regarding visitation to nonparents was not required by many statutes.32

The Supreme Court in Troxel significantly narrowed the circumstances in which a nonparent could seek visitation, but the case yielded six different opinions and no majority.33 In Troxel, which arose in the State of Washington, the father’s parents sought visitation following the father’s death from suicide. The grandparents sought two overnight visits per month, and the mother was willing to grant only one daytime visit per month. The grandparents filed an action under Washington’s nonparental visitation statute, which provided: “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings.”34

The trial court gave the grandparents visitation of “one weekend per month, one week during the summer, and four hours on both of the petitioning grandparents’ birthdays.”35 The trial court’s findings in support of the judgment were that the Troxels [the grandparents] “are part of a large, central, loving family, all located in this area, and the [Troxels] can provide opportunities for the children in the areas of cousins and music.”36 The case (along with two other consolidated cases) was appealed to the Washington Supreme Court, which struck down the statute as unconstitutional on its face, holding that visitation to grandparents over objection of a parent should not be granted absent a showing of harm to the child.37

The Supreme Court affirmed the Washington Supreme Court, although on narrower grounds. In her plurality opinion, Justice O’Connor characterized the statute as “breathtakingly broad,”38 and the trial court’s findings as “slender.”39 The plurality concluded that the statute, “as applied, exceeded the bounds of the Due Process Clause”40 and that the trial court had not given sufficient deference to the decision of a fit parent to decide the amount of contact the children would have with the grandparents. Justice O’Connor’s analysis emphasized the presumption favoring parental authority:

The Superior Court’s order was not founded on any special factors that might justify the State’s interference with Granville’s fundamental right to make decisions concerning the rearing of her two daughters. . . .

[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.41

The plurality reasoned that because its decision was based on the “sweeping breadth” of the statute and the application of the statute in this case, the Court did not need to “consider the primary constitutional question passed on by the Washington Supreme Court—whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation.”42

Justices Stevens and Kennedy, in separate dissents, emphasized that a parent’s constitutionally protected authority is not absolute, and both justices rejected the harm standard. As Justice Stevens observed, “[t]he presumption that parental decisions generally serve the best interest of their children is sound, and clearly in the normal case the parent’s interest is paramount. But even a fit parent is capable of treating a child like a mere possession.”43 Noting that children have an interest in preserving established family-like bonds, he warned that a parent’s constitutional liberty “should not be extended to prevent the States from protecting children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child.”44

Justice Kennedy offered a similar observation: “Cases are sure to arise—perhaps a substantial number of cases—in which a third party, by acting in a caregiving role over a significant period of time, has developed a relationship with a child which is not necessarily subject to absolute parental veto.”45

Troxel, then, left the lower courts with an incomplete constitutional framework. A majority of the justices agreed that parents have a constitutionally protected liberty interest in the care and custody of their children,46 but there was little agreement on the showing required to overrule a parental decision for the protection of children.47 To add more uncertainty, among the justices serving at the time of Troxel, only Justices Ginsburg, Breyer, and Thomas remain on the Court.

Both before and after Troxel, the law regarding custody for nonparents has provided a strong preference for custody for parents. The preference is expressed in different ways, including “natural right,”48 “superior right,”49 “prima facie right,”50 or “presumption.”51 Some states apply a heightened burden of persuasion for third parties seeking custody, such as “clear and convincing evidence”52 or “compelling reasons.”53 Common bases for granting a nonparent custody include parental unfitness,54 abandonment of the child,55 and other “extraordinary”56 or “exceptional”57 circumstances.

In the last twenty-five years, on the other hand, the de facto parent doctrine has made inroads on parental authority.58 A growing number of states have given rights to de facto parents to seek custod or visitation—using that term or similar terms. Phrases capturing an analogous concept include “in loco parentis,” “psychological parent,” “equitable parent,” and establishment of a “child-parent relationship.” At least twenty-eight states have granted such rights by statute or case law.59 In 2017, the Uniform Law Commission approved the Uniform Parentage Act, which treats a de facto parent as a full parent for all purposes.60

The challenge for the Drafting Committee was to design an effective constitutional framework in light of Troxel and evolving state law, including the law regarding nonparents who have acted in a parental role for a significant period of time. The resulting Act avoids the pitfalls of the “breathtakingly broad” Washington statute by identifying two categories of nonparents who may seek relief under the Act and requiring that both categories overcome the presumption favoring parental authority by clear and convincing evidence. At the same time, as explained below, the Act distinguishes between the categories with regard to a required showing of harm. In effect, the Act presumes harm when a consistent caretaker’s relationship with a child is disrupted.

II. Scope of Act

As with most uniform acts, certain clarifications and exclusions are necessary in the UNCVA to avoid encroaching on settled rights in other areas of the law. The core focus of the Act is on disputes in which parents, wielding constitutional authority, are in conflict with nonparents. For that reason, the Act does not extend to disputes between nonparents when a parent is not a party.61

Nonparent custody disputes involving American Indian children sometimes implicate rights under the Indian Child Welfare Act.62 For example, if a nonparent were to seek custody of an Indian child to the exclusion of a parent, ICWA’s safeguards might be triggered.63 In In re N.B., for example, a stepmother sought to terminate the rights of an Indian child’s legal mother with the goal of adoption.64 The Colorado appellate court held that the stepmother’s severance and adoption petition fell within the scope of ICWA and that the stepmother had to meet the heightened procedural requirements of the Act. Although ICWA would govern where it applies as a matter of federal preemption, regardless of state law, the Drafting Committee concluded that it would be a useful reminder for practitioners to include a reference to ICWA. Thus, the UNCVA makes clear that ICWA governs where it applies.65

The drafting of the UNCVA overlapped with the drafting of the Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act, and the two drafting committees consulted periodically.66 The Drafting Committee was of the opinion that a child who is the subject of a guardianship should not be excluded from the potential benefit that can be derived from nonparent visitation. At the same time, if a state’s guardianship law establishes its own visitation scheme, application of the UNCVA might create conflicts. For that reason, the UNCVA does not apply to children who are the subject of guardianship proceedings if the state’s guardianship law provides its own visitation scheme.67 On the other hand, if state guardianship law does not contain a visitation mechanism, then the UNCVA will apply.68

Parallel visitation and guardianship proceedings can raise jurisdictional questions. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) applies to “child-custody proceeding[s] . . . in which legal custody, physical custody, or visitation with respect to a child is an issue.”69 Thus, the UCCJEA applies to guardianship proceedings as well as proceedings under this Act. If there are simultaneous proceedings under the UNCVA and under guardianship law, the UCCJEA (as well as state law on venue) would determine which court has priority to exercise jurisdiction.

To avoid interference in state child welfare systems, the Act provides that it does not apply to a child who is the subject of an ongoing state-initiated proceeding for abuse, neglect, or dependency.70 Such laws and related regulations have their own provisions regarding where a child may be placed and who may have contact with the child. The abuse, neglect, and dependency laws usually are in a different section of statutory compilations than laws pertaining to divorce, parentage, and nonparental rights. When a child is no longer the subject of such proceedings, relief may be sought under the UNCVA.71

For similar policy reasons, the UNCVA provides an optional provision (or bracketed, per ULC convention) precluding a nonparent from seeking custody or visitation under the Act if the nonparent’s relationship with the child derives solely from the nonparent having served as a foster parent of the child.72 If an individual has an alternate basis for seeking relief, however, such as a preexisting substantial relationship with the child, then he or she could still seek custody or visitation under the Act. For example, if a child is removed from her parent’s home and is placed with her aunt and uncle with whom she had a preexisting substantial relationship, that relationship could qualify as a basis for obtaining custody or visitation (after the foster placement has concluded), notwithstanding the foster parent status of the aunt and uncle.

Whether to exclude foster parents from the Act was the subject of considerable debate. In Smith v. Organization of Foster Families for Equality & Reform, the Supreme Court addressed the procedural protections that are due to foster parents before a child is removed.73 The Court upheld the limited statutory notice and administrative hearing rights provided to the foster parents and rejected their claim to more robust constitutional protection. “Whatever liberty interest might otherwise exist in the foster family as an institution,” the Court explained, “that interest must be substantially attenuated where the proposed removal from the foster family is to return the child to his natural parents.”74 Thus, despite the close ties that can develop between foster parents and their foster children, the relationship is constitutionally subordinate to the parent-child relationship.

Consistent with federal law, many states give foster parents rights to notice and opportunity to be heard in proceedings regarding their foster children, but foster parents are not parties to the proceedings and are not given standing to intervene in the proceedings.75 Similarly, states generally bar foster parents from seeking contact with the child after the foster parent relationship has ended, concluding that a foster parent’s request for visitation might impede the success of a child’s reunification with a birth parent or a child’s adoption.76 The optional provision in the UNCVA is based on the view that the foster parent relationship is temporary and entered into by contract with the state, and the concern that foster parent visitation might interfere with a child’s permanency plan.77

The Drafting Committee decided to make the foster parent exclusion optional in light of the disagreements among the states on this policy. Several states do give foster parents standing or the right to intervene,78 and a few state courts have permitted foster parents to seek visitation, recognizing that strong and beneficial emotional ties often develop within the foster parent-child relationship.79 The Drafting Committee was sensitive to this disagreement and for that reason structured the exclusion as a bracketed option.

The Act precludes an individual whose parental rights have been terminated from maintaining a proceeding under the Act to reestablish contact with the child.80 This exclusion recognizes that a severance of parental rights strips an individual of a right of access to the child under this Act but does not affect remedies that might exist under other law. If state law, for instance, were to permit a parent whose rights have been terminated to have contact with a child81 or to regain parental rights,82 the UNCVA would not bar recourse to that other law.

Finally, the Act is designed to avoid conflicts with orders entered regarding deployed parents. Thus, relief under the Act is not available while a custody or visitation order for a deployed parent is in effect.83 Nevertheless, an order entered before a parent is deployed remains in effect unless modified by court order.

III. Individuals Who May Obtain Relief

Section 4 of the UNCVA provides two bases for a nonparent to obtain custody or visitation. The first basis is that the nonparent is a “consistent caretaker” of a child. The second basis requires that a “substantial relationship” has developed between the nonparent and the child and denial of custody or visitation would result in harm to the child.

Both bases require the nonparent to prove that ordering custody or visitation to the nonparent is in the best interest of the child. The showing of best interest is relevant not only to whether custody or visitation should be granted to a nonparent, but also to the amount of time the child should be with the nonparent.

A. Consistent Caretaker

The “consistent caretaker” provision has four enumerated elements in addition to a provision that the four enumerated elements occur “without expectation of compensation.” The elements require that the nonparent:

(1) lived with the child for not less than 12 months, unless the court finds good cause to accept a shorter period;

(2) regularly exercised care of the child;

(3) made day-to-day decisions regarding the child solely or in cooperation with an individual having physical custody of the child; and

(4) established a bonded and dependent relationship with the child with the express or implied consent of a parent of the child, or without the consent of a parent if no parent has been able or willing to perform parenting functions.84

The elements are drawn from multiples sources, including the American Law Institute Principles of the Law of Family Dissolution,85 current drafts of the Restatement of Law: Children and the Law,86 the definition of “de facto parent” in the Uniform Parentage Act (UPA)87 and case law that has given rights to nonparents who have developed a parent-child-like relationship with the child.88

The requirements for consistent caretaker are structured with intended flexibility. Under subsection (b)(1), the twelve-month period during which the nonparent lived with the child need not be consecutive months. Examples of reasons for shortening this period are when a child is under 12 months of age and the petitioner has been living with the child since birth or shortly after birth, or the period of time is only slightly shorter than 12 months, such as 11.5 months, and all other requirements are met.

The second element requires that the nonparent exercise care of the child “regularly” rather than sporadically.

The third element regarding making day-to-day decisions refers to minor decisions such as the time the child gets up and goes to bed and what food the child will eat. The decisions may include (but are not required to include) more major decisions, such as whether the child should have a medical procedure or enroll in a particular school.

Regarding the fourth element, the term “bonded” refers to the closeness of the relationship. The term “dependent” refers to the degree to which the child relies upon, and is in need of, the nonparent.

A nonparent’s status as a consistent caretaker is phrased in the present tense (“the nonparent is a consistent caretaker”). The four enumerated elements are phrased in the past tense (“lived,” “exercised,” “made,” “established”). Thus, if a nonparent was a caretaker of a child in the recent past, but the child is no longer living with the nonparent (such as because the child is back with the parent), the nonparent could still claim status as a consistent caretaker. The Drafting Committee considered imposing a strict time requirement for the nonparent to seek relief, but rejected that approach in favor of a more flexible model. A strict time requirement might deter amicable arrangements by forcing the nonparent to immediately seek relief after the nonparent has stopped living with the child.89

If, on the other hand, the child has not lived with the nonparent for a significant period of time, the nonparent would lose status as a consistent caretaker but still might be able to seek relief under subsection (c) (“substantial relationship”). Determining whether too much time has elapsed before the nonparent sought relief will depend on multiple factors, including the child’s age and whether significant contact between the nonparent and child has continued.

A showing that denial of custody or visitation would result in harm to the child is not required for a consistent caretaker because severance of a bonded and dependent relationship between a child and the consistent caretaker is presumptively harmful to the child. Case law, moreover, has recognized that a legal parent relinquishes some degree of protected liberty when she invites a nonparent into a child’s life to participate in childrearing and to form a strong parent-like bond with the child.90 As the New Jersey Supreme Court put it, by participating in the creation of a psychological parent’s relationship with the child, “the legal parent cede[s] over to the third party a measure of parental authority and autonomy” and loses the right to unilaterally cut off contact with the psychological parent.91

The “consistent caretaker” provision of this Act has similarities to the definition of “de facto parent” under the UPA. Both Acts require that the persons seeking rights have lived with the child, regularly exercised care of the child, and established a bonded and dependent relationship with the child. The “consistent caretaker” provision, however, is more flexible. Unlike a “de facto parent” under the UPA, a “consistent caretaker” under the UNCVA does not require that the individual seeking custody or visitation hold the child out as his or her own. In addition, the “consistent caretaker” provision does not require that the individual has undertaken “full and permanent responsibilities of a parent.” Moreover, an individual who fits the definition of “consistent caretaker” is entitled to request custody and visitation under this Act but is not entitled to other rights associated with parentage.

In early drafts of the UNCVA, the Act used the term “de facto parent” instead of “consistent caretaker.”92 The Drafting Committee initially thought it would be beneficial to use a term that already was familiar in the law. At the first reading of the Act before the full Uniform Law Commission, several commissioners expressed concern that the Act was creating a new class of persons with full parental rights rather than rights to only visitation or custody.93

To meet those concerns, the Drafting Committee changed the term from “de facto parent” to “consistent caretaker.” The Committee also wanted the term to be more flexible than the definition of “de facto parent” under the UPA. In addition, a “de facto parent” under the UPA who meets the statutory criteria can achieve the status of full legal parentage and is no longer considered a nonparent.94

Under the UNCVA, in contrast to the UPA, the importance to a child of preserving a very close relationship with a nonparent would not turn on whether the nonparent held the child out as his or her own or on whether the relationship was permanent. For example, a grandparent who has raised a child for several years is likely to have a very close relationship with the child that should be protected, even if the grandparent did not hold the child out as his or her own.95

B. Substantial Relationship and Showing of Harm

The second basis for a nonparent to obtain custody or visitation under the UNCVA requires a showing of “a substantial relationship with the child and the denial of custody or visitation would result in harm to the child.”96 In addition, “best interest of the child” must be shown.97 A “substantial relationship” means “a significant emotional bond exists between the nonparent and child.”98 A history of consistent caretaking is not required.

The status of having a “substantial relationship” with the child is available to relatives and nonrelatives of the child. If the nonparent is a nonrelative, the nonparent must have “formed a relationship with the child without expectation of compensation.”99 Thus, a paid nanny or babysitter who is not related to the child could not use the Act to obtain custody or visitation. On the other hand, if compensation is paid to a relative who is caring for the child, that would not preclude the relative from obtaining custody or visitation on the basis of a “substantial relationship” if other requirements of the Act were met. Committee members envisioned, in some cases, the parents might be away from the child for a period of time, leave the child in the care of a relative, and send money to the relative to help meet the child’s expenses. In that circumstance, the Committee did not want to preclude the relative from obtaining relief under the Act.100

As noted earlier,101 the Supreme Court in Troxel did not rule on the issue of whether due process requires a showing of harm before visitation can be granted. The Drafting Committee decided to require a showing of harm as part of the “substantial relationship” test.102 Requiring a showing of harm to the child if relief were not granted is consistent with the trend in the state courts to subject nonparent custody and visitation statutes to analysis under principles of strict scrutiny and compelling state interest. Under that approach, a showing of harm to the child meets the compelling state interest test.103

At least ten state supreme courts have held, as a matter of state or federal constitutional law, that harm to the child if visitation is denied must be shown before visitation may be granted to a grandparent.104 Most of these cases did not involve nonparents who had acted as consistent caretakers—a category of nonparent that the UNCVA treats differently. Although most courts that have ruled on the issue have required a showing of harm, some courts have not.105

In addition, as of 2017, statutes in nine states require proof of “harm,” “detriment,” or similar proof before visitation is granted to a nonparent.106

The Drafting Committee debated the best term to use regarding the level of negative effect on the child necessary for relief to be granted under the “substantial relationship” test. Early drafts of the Act used the term “detriment” rather than “harm.” Some on the Drafting Committee believed that the term “detriment” provided more flexibility for granting relief and required less negative effect than “harm.”107 Because the two words are close in meaning and the term “harm” is more commonly used in family law statutes and case law, the Committee decided to use the term “harm.”

The UNCVA uses the same criteria for granting custody or visitation. After Troxel, the burden for obtaining either type of relief is high, and the UNCVA translates that into proof by clear and convincing evidence. Courts have recognized that a grant of custody is a greater intrusion on parental rights than a grant of visitation.108 Thus, a consistent caretaker seeking custody must show by clear and convincing evidence that the significant intrusion on parental liberty is in the child’s best interests. Although a consistent caretaker by definition must demonstrate a history of residential caregiving and decision making and the existence of a strong bond with the child, a bid for custody still needs to meet the heightened burden of proof.

In contrast, a nonparent relying on the substantial relationship category must not only meet the heightened burden of proof but also show that custody or visitation is necessary to avoid harm to the child. In general, a nonparent seeking custody of a child must show that custody for the nonparent is necessary to prevent harm to the child resulting from parental custody, while a nonparent seeking visitation will need to show that continued contact with the nonparent through visitation is necessary to prevent harm from loss of that relationship.109

C. Case Law

In the years since Troxel was decided, state courts have generally held that a grandparent’s claim that the grandparent has a positive relationship with the grandchild is not sufficient in itself to justify an order of visitation over the objection of a parent.110 On the other hand, if the grandparent has raised a child for a few years, that can be the basis for granting visitation to the grandparent over the parents’ objection.111

An example of a substantial relationship between the child and nonparents that resulted in an order of visitation for the nonparents is the case of Moriarty v. Bradt.112 The New Jersey Supreme Court reinstated a trial court’s grant of visitation to maternal grandparents after the mother’s death.113 The grandparents’ expert said that such visitation was “to protect the children from the harm that would befall them if they were alienated from their grandparents.”114

Similarly, the Pennsylvania case of Hiller v. Fausey upheld a visitation order for grandparents who had established a significant caring relationship with the child.115 In Hiller, the state supreme court explained the factual background: “Prior to Mother’s death, Child had frequent contact with Grandmother, especially during the last two years of his mother’s illness, when they saw each other on an almost daily basis. Grandmother often transported Child to and from school and cared for him when Mother attended doctors’ appointments or was too ill to provide care. Further, Grandmother took on the task of preparing Child for Mother’s death. The trial court found credible the testimony that Child and Grandmother enjoyed spending time together, showed a great deal of affection toward one another, and shared a very close relationship.”116 The court affirmed visitation (referred to in Pennsylvania as “partial custody”) of one weekend per month and one week each summer.

Illustrative cases in which a nonparent has been able to obtain custody (or guardianship) over a parent’s objection generally include situations in which the nonparent has been living with the child and participating in caretaking while the objecting parent has had minimal involvement, if any, in the child’s life. In In re Child B.B.O., for example, the nonparent was a half-sister who had been residing with the child and the child’s father and helping with caregiving.117 After the father died, the half-sister sought custody over the objection of the noncustodial mother. The court held that the half-sibling had standing to seek primary allocation of parental responsibilities.118

D. Issue of Standing Based on Disruption in the Family

As noted in the “History” section,119 the statutes of many states specify the circumstances in which visitation by a nonparent may be sought—circumstances that often involve some disruption of the family—e.g., divorce, separation, or death of a parent. In addition, many states provide standing for grandparents or other nonparents if a child is born outside of marriage.120 The Drafting Committee chose not to follow that approach. Such categorical preconditions for standing often have little bearing on a child’s welfare and thus may allow an undue intrusion on parental rights.

Courts have recognized that such thresholds fall short of protecting parental rights. Maine’s highest court held that death of a parent, without other compelling reasons, was not sufficient reason to confer standing.121 Similarly, the Pennsylvania Supreme Court held that separation of the parents for six months was not a sufficient basis to allow grandparents to seek visitation.122 The criteria of this Act, in contrast, focus on the factors used to decide whether visitation or custody should be granted, particularly the closeness of the relationship between the child and the nonparent.

E. Number of Persons Who May Seek Custody or Visitation

The Act does not set a maximum number of nonparents who may obtain rights of custody or visitation. In most cases, the number of actively involved persons with a valid claim for custody or visitation will be small. As courts sort through complex family structures, the number of persons with potential claims for custody or visitation is a factor that should be considered—but without applying a fixed rule about how many persons with rights to time with the child is too many. The focus needs to remain on the best interest of the child.

IV. Presumption in Favor of Parent; Burden of Proof

The presumption and burden of proof in the UNCVA recognize the superior right of parents in custody and visitation disputes with nonparents, but also recognize that the superior right or presumption can be overcome.

Section 5(a) of the UNCVA provides that “[i]n an initial proceeding under this [act], a decision by a parent regarding a request for custody or visitation by a nonparent is presumed to be in the best interest of the child.” Section 5(b) provides that “a nonparent has the burden to rebut the presumption under subsection (a) by clear-and-convincing evidence” although “[p]roof of unfitness of a parent is not required to rebut the presumption . . . .”

The presumption and burden of proof are designed to meet the requirements of Troxel. In her plurality opinion, Justice O’Connor emphasized that the Washington statute “contain[ed] no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever.”123 In addition, she noted that the trial court’s order “was not founded on any special factors that might justify the State’s interference with Granville’s fundamental right to make decisions concerning the rearing of her two daughters.”124

Troxel did not deal explicitly with the burden of proof required when a nonparent seeks visitation or custody. Given the importance of the rights involved, the Drafting Committee chose to require “clear and convincing evidence” rather than a “preponderance of the evidence.” This approach is consistent with statutes and case law. As of 2017, the nonparent visitation or custody statutes of twenty-two states and the District of Columbia specify that clear-and-convincing evidence is the burden of proof for all or part of the statutory claim.125

In addition, the Colorado Supreme Court has held that the burden of proof in a grandparent visitation case is clear-and-convincing evidence—even though the state’s grandparent visitation statute did not explicitly require it.126 The court held as a matter of due process that “[t]he grandparent bears the ultimate burden of proving by clear and convincing evidence that the parental determination is not in the child’s best interest and the visitation schedule grandparent seeks is in the child’s best interest.”127

If a child’s parents disagree about a nonparent’s request for custody of or visitation with a child, the court should consider each parent’s wishes in determining whether the nonparent has rebutted the presumption established by this section. The Arizona Supreme Court has held, “when two legal parents disagree about whether visitation is in their child’s best interests, both parents’ opinions are entitled to special weight.”128 The court further clarified that “under those circumstances, neither parent is entitled to a presumption in his or her favor and the parents’ conflicting opinions must give way to the court’s finding on whether visitation is in the child’s best interests.”129

The term “initial” in Section 5(a) is the same as used in the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), Section 201(a) (“initial child-custody determination”),130 and the term is intended to have the same meaning in the UNCVA as in the UCCJEA.

V. Best Interest Factors

Following the common model of a multifactor approach to determining best interests, the Act includes a list of best interest factors intended to guide the courts in assessing nonparent petitions, in addition to other considerations that might appear on the state’s own listing of best interest factors for parent/parent disputes.131 The “best interests” standard, of course, has been much criticized over the years for its unpredictability, subjectivity, and amenability to bias.132 As it happens, one of the best-known examples of biased decision making in a custody dispute involved a bid for custody by grandparents. In Painter v. Bannister, the Iowa Supreme Court awarded custody of a young boy to his grandparents after the mother’s death on evidence that the father’s lifestyle was unconventional, “bohemian,” and artsy.133 As others have noted, the Painter decision seemed to rest on the conservative social values of the members of the Iowa court and to discount the value to the child of residing with his father.134

Under the UNCVA, the clear-and-convincing-evidence standard and the presumption favoring parental decision making can reign in the discretion available to trial courts. The factors in Section 12 are designed to address some of the unique tensions that can arise in a parent vs. nonparent dispute. Courts should consider, for example, any conduct by a party that poses a risk to the physical or emotional welfare of the child. Along that same line, courts are instructed to consider the likely impact of the requested order on the relationship between the child and the parent. A court should consider whether a nonparent’s requested custody or visitation would be unduly disruptive or cause intolerable friction in the existing parent-child interaction.

The nonparent visitation statutes of most states list factors a court should consider (other than best interest of the child), and Section 12 incorporates evidentiary showings that have been used by the states. The second factor—“the nature and extent of the relationship between the child and the nonparent”—may include consideration of whether there is a family relationship between the child and the nonparent.

The Drafting Committee considered having a longer list of more specific best interest factors, but decided a cross-reference to factors utilized in other state laws for interparental disputes would be sufficient and would promote consistency between different family law statutes within the state.

VI. Presumptions Against Persons Who Engaged in Domestic Violence and Related Offenses

The UNCVA recognizes that domestic violence harms children whether or not they are the targets of the violence and embraces the reforms that have occurred throughout the United States.135 Section 13 imposes a rebuttable presumption that granting custody or visitation to a nonparent is not in the child’s best interests if the nonparent or someone living with the nonparent has committed child abuse, domestic violence, sexual assault, or comparable conduct in violation of state law.136 In addition, as noted in the previous section, one of the best interest factors is “past or present conduct by a party, or individual living with a party, which poses a risk to the physical, emotional, or psychological well-being of the child.”137

Under Section 13(b), a party seeking to invoke the presumption against a nonparent must produce “(1) evidence of a conviction in a criminal proceeding or final judgment in a civil proceeding; or (2) proof by a preponderance of the evidence.” A finding of domestic violence or related offenses cannot be based on a preliminary judgment such as a temporary restraining order because such proceedings may not have given the accused an adequate opportunity to rebut the allegation.

The presumption created by the commission of the specified conduct can be rebutted with clear and convincing evidence that ordering custody or visitation to the nonparent will not endanger the child.138 Rebuttal evidence in this context might consist of successful rehabilitation, the completing of counseling, remaining sober, and other similar showings.

As an alternative to the language in the black letter, a Legislative Note to Section 13 explains that a state may “amend[ ] existing state law concerning presumptions and rebuttal of presumptions applicable to a dispute between parents” in order to make that law also applicable “to a nonparent seeking custody or visitation.” This would promote consistency in the laws of a state regarding consideration of domestic violence and related offenses when custody and visitation are at issue.139

VII. Jurisdiction

The UNCVA does not contain independent jurisdictional standards. Instead, proceedings under the Act must be filed in the court having jurisdiction under the UCCJEA.140 Thus, a nonparent who wants to file an initial petition for custody or visitation must abide by the jurisdictional rules established under the UCCJEA, choosing the child’s home state, if any, before resorting to the other jurisdictional options.141 This may result in requiring a nonparent to litigate away from his or her own residence, a consequence that parents themselves often face as a result of the jurisdictional rules.

Similarly, if a child is already the subject of a custody proceeding in a court with jurisdiction consistent with the UCCJEA, the nonparent must file in the court having exclusive continuing jurisdiction, if any.142 In other words, the UNCVA is intended to operate within our existing interstate jurisdictional scheme.

The application of the UCCJEA to a visitation or custody proceeding brought by a nonparent who claims to be a “person acting as a parent” may require several steps in the jurisdictional analysis. The first step is determination if a child has a home state. A child’s home state is the state where the child has been living with a parent or a “person acting as a parent” for six months immediately before the filing of the proceeding.143 Under Section 201, the UCCJEA’s key jurisdictional provision, priority is given to the state that is the home state of the child when the proceeding is commenced or “was the home State of the child within six months before the commencement of the proceeding and the child is absent from [the] State but a parent or person acting as a parent continues to live in the State.”144 When there is no home state or a court of the home state has declined jurisdiction, the UCCJEA recognizes jurisdiction in the state where the child and a parent or a “person acting as a parent” have a significant connection with the state and substantial evidence is available there.145

“Person acting as a parent,” in turn, means a nonparent who

(A) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child-custody proceeding; and

(B) has been awarded legal custody by a court or claims a right to legal custody under law [of the forum state].146

Under these jurisdictional rules, whether a nonparent qualifies as a “person acting as a parent” carries obvious jurisdictional implications. Consider, for example, a child who lived with a nonparent, such as a grandparent, for six months or more in State X, but the child’s parent later moved with the child to State Y. Whether State X will be identified as the child’s home state will depend, in part, on whether the nonparent has met the UCCJEA’s definition of “person acting as parent.” Similarly, if there is no home state, but the child and a nonparent have a significant connection to a state, the determination of jurisdiction may depend on the nonparent’s status as a “person acting as a parent.” Courts have developed nuanced approaches to these questions.147

When nonparents have not been exercising physical custody of a child, the determination of home state or significant connection jurisdiction will be based on the parent and child relationship without regard to the nonparent.148 The commentary to Section 201 explains that the UCCJEA has a narrower scope of home state jurisdiction than the Parental Kidnapping Prevention Act (PKPA),149 triggered in part by concerns about variations in state law regarding grandparent visitation claims. Under the PKPA, the six-month extension of home state jurisdiction applies whenever a “contestant” remains in the home state,150 and “contestant” means “a person, including a parent or grandparent, who claims a right to custody or visitation of a child.”151 The drafters of the UCCJEA were concerned that using the term “contestant” in the definition of home-state jurisdiction could lead to conflicting jurisdictional determinations because of variations in state law governing visitation for grandparents and others.152 A grandparent might have a right to seek visitation and therefore be a “contestant” in one state and not in another. By using the phrase “person acting as a parent” rather than “contestant,” the UCCJEA “bases jurisdiction on the parent and child or person acting as a parent and child relationship without regard to grandparents or other potential seekers of custody or visitation.”153 In other words, the UCCJEA gives the nonparent jurisdictional significance only if the nonparent has been in a custodial role.

Emergency jurisdiction, of course, is available to nonparents as well as parents if a child has been abandoned or is at risk of mistreatment or abuse.154 That jurisdiction is temporary, however, and limited in nature.155

VIII. Pleadings

The Drafting Committee was well aware that litigation itself is an intrusion on parental authority, even when a parent ultimately prevails. As Justice O’Connor recognized in Troxel, “the burden of litigating a domestic relations proceeding can itself be ‘so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child’s welfare becomes implicated.’”156 For that reason, nonparents must plead a prima facie case under the Act in order to stay in court.157 The petition must spell out in detail the facts establishing that the nonparent meets the criteria for consistent caretaker or substantial relationship and the facts showing that the requested custody or visitation is in the best interests of the child. In the view of the Drafting Committee, a notice pleading standard would not have sufficiently protected the parent from meritless litigation. Instead, the UNCVA requires that petitions “allege specific facts”158 showing the petitioner is entitled to relief.

Under Section 7, the petition must include relevant information about the relationship between the nonparent and the child, including any agreement between the nonparent and parent for contact with the child, any compensation provided to the nonparent in exchange for care of the child, and any previous attempt to obtain custody or visitation by the nonparent.159

Importantly, if the petitioning nonparent is relying on the “substantial relationship” prong of the Act, the petition must allege facts showing that denial of the requested custody or visitation would result in harm to the child. The prima facie pleading requirement is intended to serve as a screening device, permitting courts to dismiss petitions on their face for insufficiency.

IX. Notice

The Drafting Committee opted for a generous notice provision, wanting to ensure that all persons with a protectable interest in the proceeding would have the opportunity to be heard. Drawing from the framework used within the UCCJEA,160 Section 9 of the Act requires notice to parents, any custodian of the child, anyone having court-ordered visitation, and any attorney, guardian, or other representative for the child.161

The methods by which notice is given are governed by state and local rules. The term “person” is used in subsection (2) because a government unit or other institution may have “custody” of a child. The term “individual” is used in subsection (3) because only a natural person (an “individual”) may have visitation with a child. The notice provision is limited to individuals with “court-ordered” visitation (rather than informal visitation), since determining the identity of individuals who might visit a child without a court order would be difficult if not impossible.

X. Judicial Powers in Proceedings Under the Act

In proceedings under the UNCVA, the Drafting Committee wanted to ensure that courts would have equivalent authority as other courts hearing family disputes within the state to make appointments and require services as needed to serve the interests of the child. The Act, however, does not mandate the creation of particular services in a jurisdiction where no similar services exist.

A variety of personnel and court services are available in every state to assist courts in making decisions regarding child custody,162 and courts in a proceeding under the UNCVA should have the benefit of these resources. To the extent the family courts of the state have authority to do so, courts under the UNCVA may appoint children’s representatives, conduct interviews with the child, and order investigations and evaluations of the child’s circumstances and the effect of ordering or denying the requested relief.163 Such evaluations might include mental health assessments and evaluations of parenting skills. Consistent with existing state law, a court may also require mediation or other forms of alternative dispute resolution.164 Note, however, that if a party has been the victim of domestic violence or other similar crime by another party, mediation and other forms of ADR may not be required unless reasonable procedures are in place to protect the party from risk of harm, harassment, or intimidation.165

The Act also authorizes the court to allocate the cost of services between the parties—a power commonly exercised in family court. While allocation of costs between parents is based on their shared responsibility for the child, allocation between a parent and a nonparent may raise different concerns. A parent, for example, may resist any requirement to pay part or all of the cost of services to facilitate a nonparent’s action that the parent believes should never have been filed. The black letter leaves such matters to the court’s discretion.

Similarly, the Act authorizes a court to expedite proceedings and issue appropriate orders if the child is at risk of imminent harm.166 An emergency order might be necessary, for example, if a child were endangered by a custodian’s substance abuse—whether the custodian is a parent or nonparent.

XI. Findings of Fact and Conclusions of Law

Whether to require findings of fact and conclusions of law in proceedings under the Act was a question the Drafting Committee discussed at some length. The ultimate resolution was to include a bracketed section so as to preserve existing state policy. Section 16 requires a court issuing a final order under the Act to make findings of fact and conclusions of law.167 Likewise, if a court dismisses a petition, the UNCVA requires the judge to state the reasons for the dismissal.168 Such a requirement has multiple benefits. If a judge is required to engage in fact-finding and to spell out her findings and conclusions, she may be less likely to overlook important facts. Also, the requirement for findings and conclusions may curb a tendency to issue biased rulings. In addition, detailed fact-finding facilitates appellate review but also may result in fewer appeals, since parties may be more willing to accept an adverse decision.

Because states differ in their approach to findings of fact and conclusions of law, Section 16 is bracketed. Some states require findings and conclusions by statute,169 others address the question by court rule,170 and in some states, findings are required only if requested by a party.171 As with other provisions of the UNCVA, the Drafting Committee included language indicating the Committee’s policy but recognizing differences from state to state.

XII. Modification of Orders

Disputes over children are the most emotionally wrenching conflicts in family court, and parties do not necessarily give up once an order is entered. Indeed, efforts to modify existing custody and visitation orders are a daily reality of family law litigation. At the same time, the value of continuity and stability for children is universally recognized and has shaped policy in this area.172

Under Section 15, the standard for modifying an award of custody or visitation entered under the Act incorporates the existing modification standard in the enacting state, often framed as a “substantial and continuing change in circumstance.”173 Any requested modification must be in the child’s best interests, established by a preponderance of the evidence. The burden is on the party seeking the modification, whether that individual is a nonparent or parent.

A question that has frequently arisen in the case law concerns whether a parent can invoke the presumption favoring parental authority at the modification stage, after a nonparent has succeeded in obtaining an award of custody or visitation. For example, if a grandparent successfully petitioned for custody because of a parent’s substance abuse problems, the parent might seek a return of custody after a period of rehabilitation. Under the Act, the parent would have the burden of establishing by a preponderance of the evidence that circumstances had substantially changed and that the return of custody would be in the child’s best interests. In other words, the Act does not place a thumb on the scale favoring the parent once the nonparent has overcome the presumption by clear and convincing evidence.

An illustrative case is In re Marriage of Epler.174 There a mother who had lost custody of her child to a third party by court decree sought to regain custody and to invoke the parental presumption to strengthen her position. The Oregon Supreme Court reasoned that once the presumption had been overcome and the mother had lost physical and legal custody of her daughter, she bore the burden of proof to show a material and ongoing change in circumstance in seeking to regain care and control of her daughter.175 A parent might be able to meet the burden of proving a material and continuing change in circumstance requirement in different ways, including a change in the nonparent’s conduct toward the child. A recent Nebraska case, for example, granted a modification on a showing by the parent that the nonparent had ceased to occupy in loco parentis status in her relationship to the child.176

Admittedly, the case law is mixed on this question. Some courts have recognized the presumption favoring parental authority when a parent has temporarily lost custody due to substance abuse but, having successfully completed a rehabilitation program, is seeking to regain custody.177 While sympathetic to such fact patterns, the Drafting Committee concluded that such a parent would likely be able to succeed even without the presumption favoring parental custody and control. A material change in circumstance could be based on evidence of the parent’s rehabilitation and the benefit to the child of parental custody. Placing the burden on the party seeking modification, whether it is the parent or the nonparent, serves children’s interest in continuity and stability.

Under Section 15, however, if the nonparent is seeking substantially greater rights (i.e, an order of custody after having been granted only visitation), then the nonparent must again rebut the parental presumption.178 Where the nonparent is seeking a change from visitation to a grant of custody, entailing greater decision-making authority over the child’s life, the Act requires that the nonparent establish by clear and convincing evidence the elements spelled out in Section 4.

XIII. Effect of Adoption of a Child

The Act embraces existing law concerning the legal effect of a child’s adoption on nonparent custody or visitation. The law in many states allows for visitation, or continuation of visitation, by nonparents after adoption of the child by a relative. The policy underlying such laws is to preserve existing bonds for the child unless the child is being adopted into an entirely new family. State laws regarding visitation by nonparents have dealt with the effect of a child’s adoption in different ways, primarily providing either that the visitation order survives adoption by a relative, particularly a stepparent,179 or that nonparents may seek visitation following adoption by a relative.180

The Act endorses the widespread policy of maintaining orders for nonparent visitation after an adoption by a child’s relative unless the order is expressly modified. Under Section 17, if a child is adopted by a stepparent or other relative, any existing order for custody or visitation for a nonparent remains in place unless modified by the original court or by the adoption court.181 Significantly, a modification requires notice to all parties to the custody or visitation proceeding,182 thus providing the nonparent the opportunity to present his or her perspective on the need for continued contact with the child. In general, preexisting custody orders would not survive an adoption decree, but courts might very well permit relatives to continue to exercise visitation with a child post-adoption. The approach of the Act protects continuity for the child who is adopted by a relative while also recognizing that nonrelative adoptions implicate different concerns. In the latter circumstance, a child’s adjustment to a new adoptive family might be undermined by maintaining ties with relatives from the birth family.

XIV. Cost of Facilitation of Visitation

Section 18 of the Act provides a court with discretion in “allocating responsibility between the parties for payment of the expense of facilitating visitation, including the expense of transportation.”

If a child needs an escort for travel, that would be part of the cost. The Drafting Committee anticipated that in most cases in which a nonparent is granted visitation, the nonparent (rather than the parent) would pay the cost of facilitating visitation.

The issue of whether child support should be paid to or by a nonparent is left to laws of the state other than the Act.183 That is consistent with the current nonparent visitation laws of the states, the substantial majority of which do not deal with the issue of child support.

XV. Conclusion

While Troxel remains the Supreme Court’s last, if muddled, word on the question of nonparent contact with children, lower courts have not had the liberty of sitting back and waiting for the constitutional framework to be elucidated. Third-party bids for custody and visitation arise regularly in the state courts and, given the demographic trends cited in the Introduction, will likely increase.184 As more children live with unmarried parents or a single parent, we can expect them to develop close relationships with cohabitants, stepparents, grandparents, and other relatives. Disputes will inevitably arise within these new familial constellations and may end up in court. Parents, nonparents, and children deserve a coherent structure for resolving these human conflicts.

The UNCVA recognizes not only that parental liberty interests are a bedrock of our constitutional system but also that children may have strong emotional bonds with adults other than their parents that deserve protection. The Act provides a framework that integrates the due process principles suggested by the Troxel plurality with a structure centered on the nature of the nonparent’s relationship with the child. State courts often express frustration with legislatures for not providing greater guidance in this area, particularly in light of the unsettled constitutional doctrine.185 The Uniform Law Commission has tried to fill that legislative gap with a reasoned approach that takes into account the multiple interests at stake.

Endnotes

1. See UNCVA (Unif. L. Comm’n, 2018), https://www.uniformlaws.org/committees/community-home/librarydocuments?communitykey=e33c7569-9eb3-48ef-b998-cb2e558fa2de&tab=librarydocuments. The Final Act, with Comments, is also included at the conclusion of this Article as Appendix A. Appendix B describes issues of style that arose during the drafting process.

2. 530 U.S. 57 (2000).

3. U.S. Census Bureau, Current Population Survey, 2018 Annual Social and Economic Supplement, tbl. C2: Household Relationship and Living Arrangements of Children Under 18 Years, by Age and Sex: 2018.

4. Id. The data reported that 50,953,000 children were living with both parents, 16,395,000 were living with the mother only, 3,251,000 were living with the father only, and 3,141,000 were living with neither parent. Of that last group, about 1,700,000 were living with grandparents.

5. The classic work on the concept of psychological parenthood as distinct from legal parenthood is Joseph Goldstein, Anna Freud & Albert J. Solnit, Beyond the Best Interests of the Child (1973). That early work continues to influence attachment theory. See, e.g., Attachment Theory and Research: New Directions and Emerging Themes (Jeffrey A. Simpson & W. Stephen Rholes eds., 2015). Not surprisingly, scholars have explored the legal implications of psychological parenthood for third-party custody and visitation disputes. See Pamela Laufer-Ukeles, The Relational Rights of Children, 48 Conn. L. Rev. 741 (2016) (emphasizing children’s perspectives and arguing that states should recognize a range of caregiver relationships); Rebecca L. Scharf, Psychological Parentage, Troxel, and the Best Interests of the Child, 13 Geo. J. Gender & L. 615 (2012) (advocating for broad standing to include children and third parties with strong relationships with children and careful judicial consideration of harm to children when psychological bonds are severed).

6. See Jennifer Egan, Children of the Opioid Epidemic, N.Y. Times Mag. (May 9, 2018), https://www.nytimes.com/2018/05/09/magazine/children-of-the-opioid-epidemic.html.

7. Many states condition a nonparent’s access to court on a showing that a parent has died, the legal parents are divorced, the child was born out of wedlock, or a combination of such circumstances. See, e.g., Ariz. Rev. Stat. § 25-409 (LexisNexis 2019) (visitation by nonparent available only if one parent is dead or missing, the child was born out of wedlock and the parents are not married, or a divorce is pending). Parents have successfully challenged some of these statutes as violating their due process rights. See, e.g., D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016) (holding that Pennsylvania statute recognizing grandparent standing based on parents’ separation violated due process).

8. See cases discussed infra at notes 103–04.

9. See cases discussed infra at note 105.

10. See cases discussed infra at notes 126–29.

11. Burak v. Burak, 168 A.2d 883 (Md. 2017), is illustrative of the difficulty state courts continue to have in interpreting Troxel’s ambiguous signals. There, the Maryland Court of Appeals issued a lengthy opinion upholding the right of a mother to block grandparents from obtaining custody, triggering strongly worded separate opinions by members of the court who disagreed with the majority on its approach to in loco parentis status, the relevance of psychological bonding, and the meaning of parental unfitness. See also C.G. v. J.H., 193 A.3d 891 (Pa. 2018) (holding former same-sex partner had no standing to pursue shared custody where she did not occupy status of in loco parentis, triggering divergent opinions from other justices); In Interest of H.S., 550 S.W.3d 151 (Tex. 2018) (upholding standing under Texas statute for grandparents who had exercised care of child and finding parents’ due process rights were not violated, triggering dissents from other justices).See generally Mark Strasser, Custody, Visitation, and Parental Rights Under Scrutiny, 28 Cornell J.L. & Pub. Pol’y 289 (2018) (describing divergent approaches in state courts in response to Troxel regarding third-party access to children and the appropriate constitutional framework).

12. Under the leadership of the Honorable Debra Lehrmann, the Drafting Committee worked for two and a half years on the project. The Committee included practicing family law attorneys, legislative counsel, state court judges, academics, and generalists. Invaluable contributions came from the ABA Advisor, the late Allen Palmer, and observers representing the American Academy of Matrimonial Lawyers, the National Center for Lesbian Rights, the ABA Commission on Domestic Violence, and other professional groups.

13. Successive drafts considered by the Committee and internal memoranda are collected in the Committee Archive, UNCVA, supra note 1, at “Committee Archive.”

14. See id. at “Committee Archive,” “Committee Chair and Reporter Memo (7/27/2017).”

15. See, e.g., Jeffrey A. Parness & Alex Yorko, Nonparental Childcare and Child Contact Orders for Grandparents, 120 W. Va. L. Rev. 95 (2017) (urging recognition of grandparent childcare orders based on children’s best interests and criticizing the UNCVA drafting project for not more robustly protecting grandparents’ rights).

16. See UNCVA, supra note 1, at “Committee Archive: 2018 Annual Meeting Issues Memo.”

17. See id. § 4.

18. See id. § 5.

19. See Restatement of the Law: Children & the Law §§ 1.70–1.72 (Am. Law Inst., Council Draft No. 3, Sept. 4, 2018) [hereinafter Children & the Law].

20. See id. §§ 1.80, 1.81.

21. See id. § 1.82 (requiring for custody or decision-making authority a showing of parental unfitness, extraordinary circumstances, or de facto parent status).

22. See discussion infra at notes 108–09.

23. See UNCVA, supra note 1, §§ 7, 8.

24. For a robust argument that the law should privilege children’s relational interests over parental authority in a range of contexts, see Anne C. Bailey & Laura Rosenbury, The New Law of the Child, 127 Yale L.J. 1448 (2018).

25. See UNCVA, supra note 1, § 12.

26. At least one state has already enacted the UNCVA. See S.B. 2051, 66th N.D. Leg. Assemb. (N.D. 2019), https://www.legis.nd.gov/assembly/66-2019/bill-actions/ba2051.html.

27. For a more detailed description of the history of the law regarding nonparent rights, see Jeff Atkinson, Shifts in the Law Regarding the Rights of Third Parties to Seek Custody and Visitation of Children, 47 Fam. L.Q. 1, 1–34 (Spring 2013) [hereinafter Atkinson, Shifts in the Law]; Jeff Atkinson, Modern Child Custody Practice §§ 9-1–9-24 (LexisNexis 2d ed. 2018) [hereinafter Atkinson, Custody Practice].

28. N.Y. Dom. Rel. Law § 72 (McKinney 2019).

29. Neb. Rev. Stat. §§ 43-1801–1803 (2019).

30. Atkinson, Shifts in the Law, supra note 27, at 2–3, 7–8, 22–24.

31. Id. at 3, 22–24.

32. Id. at 4.

33. Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion). Justices Souter and Thomas concurred, and Justices Stevens, Scalia, and Kennedy dissented, all writing separate opinions.

34. Wash. Rev. Code § 26.10.160(3) (1994).

35. Troxel, 530 U.S. at 62.

36. Id. at 72.

37. In re Custody of Smith, 969 P.2d 21, 23 (Wash. 1998).

38. Troxel, 530 U.S. at 67.

39. Id. at 72.

40. Id. at 68.

41. Id. at 68–69.

42. Id. at 73. In addition to the plurality, Justices Souter, Stevens, and Kennedy agreed that parents have a fundamental liberty interest, and Justices Stevens and Kennedy reasoned that an absolute requirement of a showing of harm in order to overcome parental authority was not constitutionally required. See id. at 77 (Souter, J. concurring); id. at 80–91 (Stevens, J., dissenting); id. at 94–95 (Kennedy, J., dissenting).

43. Id. at 86. (Stevens, J., dissenting).

44. Id. at 89.

45. Id. at 98 (Kennedy, J., dissenting).

46. Only Justice Scalia disagreed with the recognition of “unenumerated parental rights,” warning that the Court is “ushering in a new regime of judicially prescribed and federal prescribed family law.” Id. at 92–93 (Scalia, J., dissenting).

47. Justice Thomas chose not to address the legitimacy of recognizing a parent’s fundamental liberty interest, noting that no party had argued that the substantive due process cases had been wrongly decided. He contended that if such a right is to be recognized, however, then a standard of strict scrutiny and compelling state interest should apply. Id. at 80. The other justices did not expressly embrace the strict scrutiny/compelling state interest formulation. See generally id.

48. See, e.g., In re Guardianship of D.A. McW., 429 So. 2d 699, 702 (Fla. Dist. Ct. App. 1983); Farnsworth v. Farnsworth, 756 N.W.2d 522, 525 (Neb. 2008); In re Visitation & Custody of Senturi N.S.V., 652 S.E.2d 490, 500 (W. Va. 2007).

49. See, e.g., In re Custody of Krause, 444 N.E.2d 644, 646 (Ill. App. Ct. 1982); In re Parker, 434 So. 2d 1256, 1257 (La. Ct. App. 1983) (citation omitted). See also LaPointe v. Menard, 412 So. 2d 223, 226 (La. Ct. App. 1982) (“paramount right”).

50. See, e.g., Street v. Street, 731 So. 2d 1224, 1225 (Ala. Civ. App. 1999); In re Merritt, 85 A.D.2d 666, 667 (N.Y. App. Div. 1981), aff’d, 446 N.E.2d 776 (N.Y. 1983); Ellerbe v. Hooks, 416 A.2d 512, 514 (Pa. 1980) (quoting In re Hernandez, 376 A.2d 648, 654 (Pa. Super. Ct. 1977)).

51. See, e.g., Lewis v. Douglass, 440 So. 2d 1073, 1075 (Ala. Civ. App. 1983); Vance v. Butler, 606 S.W.2d 153, 154 (Ark. Ct. App. 1980); In re Custody of Townsend, 427 N.E.2d 1231, 1234 (Ill. 1981); In re Marriage of Reschly, 334 N.W.2d 720, 721 (Iowa 1983) (citation omitted); Hunter v. Hunter, 771 N.W.2d 694, 760 (Mich. 2009); Utah Code Ann. § 30-5a-103 (LexisNexis 2013).

52. See infra note 125. See, e.g., Mich. Comp. Laws Ann. § 722.25(1) (West 2013); Mont. Code Ann. § 40-4-228(2) (2013).

53. See, e.g., In re Hruby, 748 P.2d 57, 63 (Or. 1987); In re Sleeper, 929 P.2d 1028 (Or. Ct. App. 1996).

54. See, e.g., In re Marriage of Reschly, 334 N.W.2d at 721–22 (father committed theft, sold drugs, and sodomized a boy); Kissinger v. Shoemaker, 425 N.E.2d 208, 211 (Ind. Ct. App. 1981) (some evidence of mistreatment of children); Langerman v. Langerman, 336 N.W.2d 669, 671 (Iowa 1983) (daughter feared father when he was drunk); Fitzgerald v. Jeter, 428 So. 2d 84, 85 (Ala. Civ. App. 1983) (drug abuse and mental illness); Guidry v. Guidry, 441 So. 2d 384, 387 (La. Ct. App. 1983) (mother had suicidal tendencies along with drinking and drug problems).

55. In In re Pettaway v. Savage, 87 A.D.3d 796, 797 (N.Y. App. Div. 2011), leave to appeal denied, 962 N.E.2d 283 (2011), the court affirmed granting custody to the stepfather rather than the father following the mother’s death. The court said: “The [s]tate may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. We note that extraordinary circumstances may not be established ‘merely by showing that the child has bonded psychologically with the nonparent.” (Citations omitted).

56. Id.

57. See, e.g., Fish v. Fish, 939 A.2d 1040, 1059 (Conn. 2008); Tedesco v. Tedesco, 683 A.2d 1133, 1139 (Md. Ct. Spec. App. 1996).

58. See generally Courtney G. Joslin, De Facto Parentage and the Modern Family, 40 Fam. Advoc. 31 (2018) (summarizing case law and legislative developments recognizing functional parent-child relationships).

59. Carter v. Brodrick, 644 P.2d 850, 853, 855 (Alaska 1982) (allowing a stepparent to pursue a claim for visitation under a theory of “in loco parentis”); Ariz. Rev. Stat. Ann. § 25-401(1), 25-409 (2017) (statute granting rights to persons who stand “in loco parentis”); Bethany v. Jones, 378 S.W.3d 731, 737 (Ark. 2011) (granting visitation to a same-sex partner under theory of “in loco parentis”); Del. Code Ann. tit. 13, § 8-201 (2019); D.C. Code §§ 16-831.01–16-831.08 (2017) (statute allowing a “de facto parent” to seek custody); Haw. Rev. Stat. § 571-46(a)(2) (2019) (statute allowing custody for persons who have had “de facto custody of the child”); Idaho Code §§ 32-1701–32-1705 (2017) (the “De Facto Custodian Act”); Ind. Code §§ 31-17-2-8(8), 31-17-2-8.5 (2017) (statute allowing court to grant custody to “de facto custodian”); Ky. Rev. Stat. Ann. §§ 403.270, 403.280(9), 405.020 (West 2017) (statute allowing court to grant custody to a “de facto custodian”); Me. Rev. Stat. Ann. tit. 19-A, § 1891 (2017) (statute allowing a court to adjudicate a person to be a “de facto parent”); Thorndike v. Lisio, 154 A.3d 624, 628 (Me. 2017) (affirming a finding that a transgender man who helped raise the child was a de facto parent and was entitled to share parental rights and responsibilities); Conover v. Conover, 146 A.3d 433, 453 (Md. 2016); E.N.O. v. L.M.M., 711 N.E.2d 886, 891 & n.6 (Mass. 1999) (recognizing de facto parents); Minn. Stat. § 257C.03 (2017); Soohoo v. Johnson, 731 N.W.2d 815 (Minn. 2007); Logan v. Logan, 730 So. 2d 1124, 1126 (Miss. 1998) (holding the court had authority to grant custody to stepfather under theory of “in loco parentis”); Mont. Code Ann. § 40-4-228 (2017) (allowing the court to award a parental interest to a person who has established a “child-parent relationship” or who has stood “in loco parentis”); Kulstad v. Maniaci, 220 P.3d 595 (Mont. 2009) (affirming granting a parental interest to a same-sex partner); V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000) (holding that the former same-sex partner of the biological mother had standing to seek custody or visitation as the “psychological parent” of the child); McAllister v. McAllister, 779 N.W.2d 652, 662 (N.D. 2010) (granting visitation to stepfather because he was “psychological parent”); Ramey v. Sutton, 362 P.3d 217, 221 (Okla. 2015) (holding that a same-sex partner who had helped raise a child for ten years “is recognized as being in loco parentis to their child and is entitled to a best interests of the child hearing”); 23 Pa. Cons. Stat. § 5324 (2017) (“The following individuals may file an action under this chapter for any form of physical custody or legal custody: . . . (2) A person who stands in loco parentis to the child”); Jones v. Jones, 884 A.2d 915, 919 (Pa. Super. Ct. 2005), appeal denied, 884 A.2d 915 (Pa. 2006) (affirming primary custody to same-sex partner who stood in loco parentis to child custody and “established by clear and convincing evidence . . . that the children’s best interests are served”); Rubano v. DiCenzo, 759 A.2d 959, 976 (R.I. 2000) (holding that a former same-sex partner was “entitled to prove that she qualified as a de facto or ‘psychological’ parent to the child and that she was, therefore, eligible for visitation rights and subject to child-support obligations”); S.C. Code Ann. § 63-15-60 (2017) (de facto custodian); Middleton v. Johnson, 633 S.E.2d 162, 168 (S.C. Ct. App. 2006) (granting visitation to a man, who, although not the biological father of the child, had been the child’s “psychological parent” for ten years); S.D. Codified Laws § 25-5-29 (2018) (allowing “any person other than the parent of a child to intervene or petition a court of competent jurisdiction for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship”); Utah Code Ann. § 30-5a-103 (LexisNexis 2017) (providing the court may grant custody or visitation “to a person other than a parent” provided multiple stringent criteria are met, including that “the person has intentionally assumed the role and obligations of a parent”); In re Parentage of L.B., 122 P.3d 161, 176–77 (Wash. 2005) (holding a same-sex domestic partner had standing to seek coparentage as a de facto parent); In re Clifford K., 619 S.E.2d 138 (W. Va. 2005) (holding the partner of deceased mother had standing as “psychological parent” to seek custody of a child the couple had raised since infancy); In re Custody of H.S.H.-K., 533 N.W.2d 419, 435 (Wis. 1995) (holding the circuit court had equitable standing to hear a petition for visitation from a same-sex partner who had established “a parent-like relationship with the child”).

Cf. Mason v. Dwinnell, 660 S.E.2d 58, 70 (N.C. Ct. App. 2008) (affirming joint legal and physical custody to domestic partner “whom [the mother] transformed into a parent”); In re Bonfield, 780 N.E.2d 241, 249 (Ohio 2002) (holding that the juvenile court had jurisdiction to enter a “shared custody agreement” sought by two same-sex partners); Tex. Fam. Code Ann. § 102.003(9) (West 2017) (granting standing to “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition”).

For further discussion of this issue, and quotation from the cited statutes and cases, see Atkinson, Custody Practice, supra note 27, § 9-24.

60. Unif. Parentage Act (Unif. Law Comm’n 2017), https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=25dfe3bd-1118-cc99-229e-d4ec15f9b0f9&forceDialog=0 [hereinafter UPA (2017)]. Section 609(d) of the Act lists the elements necessary to prove status as a de facto parent:

In a proceeding to adjudicate parentage of an individual who claims to be a de facto parent of the child, if there is only one other individual who is a parent or has a claim to parentage of the child, the court shall adjudicate the individual who claims to be a de facto parent to be a parent of the child if the individual demonstrates by clear-and-convincing evidence that: (1) the individual resided with the child as a regular member of the child’s household for a significant period; (2) the individual engaged in consistent caretaking of the child; (3) the individual undertook full and permanent responsibilities of a parent of the child without expectation of financial compensation; (4) the individual held out the child as the individual’s child; (5) the individual established a bonded and dependent relationship with the child which is parental in nature; (6) another parent of the child fostered or supported the bonded and dependent relationship required under paragraph (5); and (7) continuing the relationship between the individual and the child is in the best interest of the child.

Sections 609(e) and 613 govern adjudications of de facto parentage when, in addition to the individual claiming status as a de facto parent, there is more than one other parent or person claiming to be a parent. As of January 2019, California, Vermont, and Washington have adopted the Uniform Parentage Act. See also Del. Code Ann. tit. 13, § 8-201 (2017) (Parentage Act providing that a mother-child or father-child relationship can be established by a determination that the individual is a “de facto parent of the child”).

61. See UNCVA, supra note 1, § 3(b)(1).

62. See generally Jill Tompkins, Finding the Indian Child Welfare Act in Unexpected Places: Applicability in Private Nonparent Custody Actions, 81 Colo. L. Rev. 1119 (2010) (surveying case law and advocating greater recognition of ICWA’s applicability to nonparent custody actions).

63. See, e.g., In re Mahaney, 51 P.3d 776 (Wash. 2002) (paternal grandmother’s petition for custody of Indian child was governed by ICWA).

64. 199 P.3d 16 (Colo. App. 2007).

65. See UNCVA, supra note 1, § 3(b)(2).

66. See Unif. L. Comm’n, Guardianship Conservatorship and Other Protective Arrangements Act (2017), https://www.uniformlaws.org/viewdocument/final-act-with-com​ments-127?CommunityKey=2eba8654-8871-4905-ad38-aabbd573911c&tab=librarydocuments [hereinafter UGCOPAA].

67. See UNCVA, supra note 1, § 3(b)(3)(A) & “Legislative Note.”

68. Id.

69. See Unif. L. Comm’n, Uniform Child Custody Jurisdiction and Enforcement Act at 104(4) (2019), https://my.uniformlaws.org/committees/community-home/librarydocuments?communitykey=4cc1b0be-d6c5-4bc2-b157-16b0baf2c56d&tab=librarydocuments [hereinafter UCCJEA].

70. See UNCVA, supra note 1, § 3(b)(3(B).

71. The UNCVA is similar to many state statutes that prohibit nonparent visitation claims regarding children in the child welfare system. See, e.g., Or. Rev. Stat. § 109.119(9) (West 2015) (excluding application of a nonparental visitation statute from children who are the subject of dependency proceedings).

72. See UNCVA, supra note 1, § 3(b)(c).

73. 431 U.S. 816 (1977).

74. Id. at 847.

75. See, e.g., In re Joshua S., 14 A.3d 1076, 1080 (Conn. App. Ct. 2011); Michael P. v. Greenville Cty. Dep’t of Soc. Servs., 684 S.E.2d 211 (S.C. Ct. App. 2009).

76. See, e.g., Minn. Stat. Ann. § 257C.08(4) (West 2015) (excluding foster parents from coverage under the state’s nonparental visitation law).

77. See, e.g., Michael P., 684 S.E.2d 211 (former foster parent lacked standing to seek adoption of child after child was moved from foster placement).

78. See, e.g., In re A.B., 412 S.W.3d 588, 590 (Tex. App. 2013), aff’d, 437 S.W.3d 498 (Tex. 2014) (holding that trial court acted within its discretion in allowing foster parents to intervene in action to terminate father’s parental rights); Tex. Fam. Code § 102.003(a)(12) (West 2014); Colo. Rev. Stat. Ann. § 19-3-507(5)(a) (West 2014); N.Y. Soc. Serv. Law § 383 (McKinney 2014).

79. See, e.g., In re B.J., 242 P.3d 1128 (Colo. 2010) (court had power to grant visitation to former foster parents, subject to presumption favoring parent’s decision); In re Francisco A., 866 P.2d 1175 (N.M. Ct. App. 1993) (former foster parent can petition for visitation).

80. See UNCVA, supra note 1, § 3(d).

81. Post-adoption visitation agreements, for example, are becoming more common and have received recognition in state law. See generally Cynthia Mabry, The Psychological and Emotional Ties That Bind Biological and Adoptive Families, 42 Cap. U. L. Rev. 285 (2014) (surveying law and arguing that states should enforce post-adoption visitation agreements when in the child’s best interests). The inapplicability of this Act would not bar an individual from seeking relief under such provisions.

82. See, e.g., 750 Ill. Comp. Stat. 50/14.5 (2019) (allowing a former parent whose rights have been terminated to petition for adoption if the child is still a ward of the court).

83. See UNCVA, supra note 1, § 3(e). For a framework governing such orders, see Unif. L. Comm’n, Uniform Deployed Parents Custody and Visitation Act (2019), https://www.uniformlaws.org/viewdocument/final-act-with-comments-123?CommunityKey=c6374f03-21fe-4862-a114-7498710d8e5d&tab=librarydocuments [hereinafter UDPCVA]. The UDPCVA has been enacted in 14 states as of April 2019. See id. for a current list of enactments.

84. UNCVA, supra note 1, § 4(b).

85. American Law Institute Principles of the Law of Family Dissolution: Analysis and Recommendations § 2.03(1)(c) (2002).

86. Children & the Law, supra note 19, §§ 1.80–1.82.

87. UPA (2017), supra note 60, § 609.

88. See, e.g., In re Custody of H.S.H.-K., 533 N.W.2d 419, 435 (Wis. 1995) (a seminal case giving rights to persons who establish “a parent-like relationship with the child”). See also cases cited supra at notes 58–60.

89. See UNCVA, supra note 1, atCommittee Archive: October 2017 Committee Meeting—Memo, C. Sakimura & C. Joslin.”

90. The Maryland Court of Appeals, for example, explained that the de facto parent doctrine does not infringe on parental liberty because “a legal parent does not have a right to voluntarily cultivate their child’s parental-type relationship with a third party and then seek to extinguish it.” Conover v. Conover, 146 A.3d 433, 447 (Md. 2016) (holding that de facto parent has standing to seek custody or visitation under a best interests approach and need not show exceptional circumstances or parental unfitness). See generally Joanna L. Grossman, Constitutional Parentage, 32 Const. Comment. 307, 333–40 (2017) (exploring constitutional significance of parental consent in creation of de facto and psychological parentage).

91. V.C. v. M.J.B., 748 A.2d 539, 552 (N.J. 2000), discussed in Grossman, supra note 90.

92. See UNCVA, supra note 1, at “Committee Archive: 2016 Annual Meeting Draft.”

93. Full parental rights would include not only custody and visitation but also rights under probate, tort, and tax law, among other areas. Commissioners expressed concern that the concept of “de facto parent” would allow too many parents in a child’s life. See UNCVA, supra note 1, at “Committee Archive: Status Report & Issues List (7/27/16).”

94. See UPA (2017), supra note 60, §§ 609, 613.

95. While applying Texas statutory law rather than the UNCVA, the Texas Supreme Court recently recognized that grandparents who had cared for the children for a significant period in a parental role had standing to seek custody (termed “conservatorship”) under Texas law. See In re H.S., 550 S.W.3d 151 (Tex. 2018).

96. UNCVA, supra note 1, § 4(a)(1)(b).

97. Id. § 4(a)(2).

98. Id. § 4(c)(2). The definition of “substantial relationship with the child” is drawn, in part, from Minn. Stat. Ann. § 518E.301 (West 2016), providing that “‘close and substantial relationship’ means a relationship in which a significant bond exists between a child and a nonparent.”

99. UNCVA, supra note 1, § 4(c)(1)(B).

100. Id. § 4(c)(1)(A). This section makes reference to a nonparent who “is an individual with a familial relationship with the child by blood or law.” Because the emotional ties between a child and a paid caregiver may develop into a bond as strong as with unpaid caregivers, some have argued that the payment of compensation should not disqualify an individual from seeking de facto parent status. See Pamela Laufer-Ukeles, Money, Caregiving, and Kinship: Should Paid Caregivers Be Allowed to Obtain De Facto Parental Status, 74 Mo. L. Rev. 25 (2009).

101. See UNCVA, supra note 1, at “History” and accompanying text.

102. Id. § 4(a)(1)(B).

103. See, e.g., Doe v. Doe, 172 P.3d 1067 (Haw. 2007) (grandparent visitation statute struck down under strict scrutiny analysis where statute did not require showing of harm to child); Ex parte E.R.G., 73 So. 3d 634 (Ala. 2011) (same).

104. Crockett v. Pastore, 789 A.2d 453 (Conn. 2002); Sullivan v. Sapp, 866 So. 2d 28 (Fla. 2004); Doe v. Doe, 172 P.3d 1067 (Haw. 2007); In re Marriage of Howard, 661 N.W.2d 183, 191 (Iowa 2003); Blixt v. Blixt, 774 N.E.2d 1052 (Mass. 2002); Moriarty v. Bradt, 827 A.2d 203 (N.J. 2003), cert. denied, 540 U.S. 1177 (2004); Craig v. Craig, 253 P.3d 57, 64 (Okla. 2011); Smallwood v. Mann, 205 S.W.3d 358 (Tenn. 2006); Jones v. Jones, 359 P.3d 603, 612 (Utah 2015); In re Parentage of C.A.M.A., 109 P.3d 405 (Wash. 2005).

105. See Hiller v. Fausey, 904 A.2d 875, 890 (Pa. 2006) (holding “that requiring grandparents to demonstrate that the denial of visitation would result in harm in every [case under the Pennsylvania statute] would set the bar too high” and is not required under the statute); Walker v. Blair, 382 S.W.3d 862, 872 (Ky. 2012) (“showing harm to the child is not the only way that a grandparent can rebut the presumption in favor of the child’s parents”); In re Marriage of Friedman & Roles, 418 P.3d 884 (Ariz. 2018) (showing of harm in grandparent visitation action not required).

106. See Ala. Code § 30-3-4.2 (2017) (harm); Ark. Code Ann. § 9-13-103(e) (2017) (harm); Conn. Gen. Stat. § 46b-59(b) (2017) (harm); Ga. Code Ann. § 19-7-3(c)(1) (2018) (harm); 750 Ill. Comp. Stat. 5/602.9(b)(3) (2017) (harm); Mich. Comp. Laws § 722.27b(4)(b) (2017) (harm); Tenn. Code Ann. § 36-3-306(b)(1) (2017) (harm); Tex. Fam. Code Ann. § 153.432(c) (West 2017) (significantly impair the child’s physical health or emotional well-being); Utah Code Ann. § 30-5a-103(2)(f) (West 2017) (detriment). Connecticut has both case law and statute requiring “harm.” (Citations above).

107. The two words are similar in meaning. Detriment, The American Heritage Dictionary of the English Language (4th ed. 2000) (listing the first definition of “detriment: “Damage, harm, or loss,” cf. “Harm” is defined as “Physical or psychological injury or damage.”) See also Detriment, Black’s Law Dictionary (10th ed. 2014) (defined as “[a]ny loss or harm suffered by a person or property,” cf. “harm” is defined as “[i]njury, loss, damage.”).

108. See, e.g., McAllister v. McAllister, 779 N.W.2d 652, 660 (N.D. 2010).

109. See, e.g., Fish v. Fish, 939 A.2d 1040, 1054 (Conn. 2008).

110. See, e.g., Dorr v. Woodard, 140 A.3d 467 (Me. 2016); Neal v. Lee, 14 P.3d 547 (Okla. 2000); State Dep’t of Soc. & Rehab. Servs. v. Paillet, 16 P.3d 962 (Kan. 2001); Flynn v. Henkel, 880 N.E.2d 166 (Ill. 2007).

111. See, e.g., Rideout v. Riendeau, 761 A.2d 291 (Me. 2000) (the grandparents had helped raise their grandchildren for the first seven years of the oldest grandchild’s life and for lesser periods for the younger grandchildren); E.S. v. P.D., 863 N.E.2d 100 (N.Y. 2007) (grandparents cared for children while the mother was dying of cancer).

112. 827 A.2d 203 (N.J. 2003), cert. denied, 540 U.S. 1177 (2004).

113. Id. at 224.

114. Id. at 208.

115. 904 A.2d 875, 877 (Pa. 2006).

116. Id.

117. 277 P.3d 818 (Colo. 2012).

118. See also In re Guardianship of Nicholas P., 27 A.3d 653 (N.H. 2011) (affirming guardianship for half-sibling after death of custodial parent and objection by noncustodial parent).

119. See supra Part I.

120. See Family Law in the Fifty States 2015-16, 50 Fam. L.Q. 565, 596-603 (2017)(Chart 6. Third Party Visitation) (statutory standing for third-party visitation in 18 states includes showing that parents were never married); .

121. Dorr v. Woodard, 140 A.3d 467, 472 (Me. 2016).

122. D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016). See also Santos v. Parks, 105 N.E.3d 1283 (Ohio Ct. App. 2018) (holding that an Ohio statute authorizing third-party standing where a child is born to an unmarried woman violated the equal protection rights of parents who married after the child’s birth). Statutes that condition third-party standing on the marital status of the parents may raise constitutional concerns by diminishing a parent’s parental liberty. See Comment, Over the Constitution and Through the Legislature: Redefining the Constitutionality of Grandparents’ Rights to File for Custody and Visitation in Pennsylvania, 122 Penn. St. L. Rev. 269 (2017).

123. Troxell v. Granville, 530 U.S. 57, 67 (2000).

124. Id. at 68.

125. Ala. Code § 31-3-4.2; Conn. Gen. Stat. § 46b-59(b) (2019); D.C. Code § 16-831.03(b) (2019); Ga. Code Ann. § 19-7-3(c) (2018); Idaho Code § 32-1704(6) (2019); Ind. Code § 31-17-2-8.5(a) (2019); Iowa Code § 600C.1 (2018); Ky. Rev. Stat. Ann. §§ 403.270, 403.280 (LexisNexis 2019); Me. Rev. Stat. Ann. tit. 19-A, § 1891(3) (2019); Mich. Comp. Laws § 722.25(1) (2019); Minn. Stat. § 257C.03 (2019); Mont. Code Ann. § 40-4-228(2) (2019); Nev. Rev. Stat. § 125C.050(4) (2019); N.H. Rev. Stat. Ann. § 461-A:6(II) (2019); Neb. Rev. Stat. § 43-1802(2) (2019); Okla. Stat. tit. 43, § 109.4; Or. Rev. Stat. § 109.119 (2019); 23 Pa. Stat. and Cons. Stat. Ann. § 5327(b) (2015); 15 R.I. Gen. Laws § 15-5-24.3(a)(2)(v) (2019); S.C. Code Ann. § 63-15-60 (2019); Utah Code Ann. § 30-5a-103(2) (2019); Va. Code Ann. § 20-124.2(B) (2019); W. Va. Code § 48-10-702(b) (2019).

126. In re Adoption of C.A., 137 P.3d 318, 328 (Colo. 2006).

127. Id. See also Walker v. Blair, 382 S.W.3d 862, 871 (Ky. 2012); Polasek v. Omura, 136 P.3d 519, 523 (Mont. 2006); Jones v. Jones, 884 A.2d 915, 918 (Pa. Super. Ct. 2005), appeal denied (Pa. 2006) (holding that “convincing reasons” are required). See Burden of Proof, Black’s Law Dictionary (10th ed. 2014) (defined as “[t]he burden of proof includes both the burden of persuasion and the burden of production”). In the context of the UNCVA, the nonparent must not only produce evidence establishing the requisite relationship with the child but also persuade the trier of fact under the heightened standard that the requested relief is in the child’s best interests.

128. In re Marriage of Friedman & Roels, 418 P.3d 884, 886 (Ariz. 2018).

129. Id.

130. UCCJEA, supra note 69, § 201(a).

131. See UNCVA, supra note 1, § 12.

132. See, e.g., Jon Elster, Solomonic Judgments: Against the Best Interests of the Child, 54 U. Chi. L. Rev. 1 (1987); Katherine T. Bartlett, Saving Family Law from the Reformers, 31 U.C. Davis. L. Rev. 809 (1998).

133. 140 N.W.2d 152 (Iowa 1966).

134. Rebecca Aviel, A New Formalism for Family Law, 55 Wm. & Mary L. Rev. 2003, 2013–23 (2014) (arguing that family court discretion should be constrained and using Painter as an illustration of biased decision making).

135. In disputes between parents, about half the states apply a rebuttable presumption against joint physical custody or legal custody to a parent who perpetrated domestic violence. Nat’l Council of Juvenile & Family Court Judges, Rebuttable Presumption States (2013), available at http://www.ncjfcj.org/sites/default/files/chart-rebuttble-presumption.pdf.

136. UNCVA, supra note 1, § 13.

137. Id. § 12(4).

138. Id. § 13(c) (“clear and convincing evidence that ordering custody or visitation to the nonparent will not endanger the health, safety, or welfare of the child”).

139. Nat’l Council of Juvenile & Family Court Judges, supra note 135.

140. See UNCVA, supra note 1, § 6. See, e.g., Daniels v. Barnes, 658 S.E.2d 472 (Ga. Ct. App. 2008) (UCCJEA governs grandparent visitation orders); Schumacher v. Steen, No. 294593, 2010 WL 3389740 (Mich. Ct. App. 2010) (same). Curiously, a few courts have concluded that nonparent visitation petitions are not governed by the UCCJEA, reasoning that nonparent visitation or “contact” proceedings are not “child custody proceedings” within the meaning of the UCCJEA. See, e.g., In re Stewart v. Evans, 136 P.3d 524 (Mont. 2006) (UCCJEA does not apply to grandparent-grandchild contact proceedings); Moorcroft v. Stuart, 2015 WL 413094 (Tenn. Ct. App. 2015) (unpublished) (refusing to apply UCCJEA’s registration and enforcement provisions to foreign grandparent visitation order because of concerns that foreign order might not sufficiently protect constitutional rights of parents). The UCCJEA itself, however, defines “child custody proceeding” to mean “a proceeding in which legal custody, physical custody, or visitation with respect to a child is an issue.” UCCJEA, supra note 69, § 102(4) (emphasis added). The commentary, moreover, emphasizes the broad application of the Act: “The definition of ‘child-custody proceeding’ has been expanded from the comparable definition in the UCCJA. . . . The list of examples removes any controversy about the types of proceedings where a custody determination can occur. Proceedings that affect access to the child are subject to this Act.” Id. § 102 Comment.

141. See id. § 201 (prioritizing home-state jurisdiction).

142. See id. § 202 (providing for exclusive continuing jurisdiction unless and until specified circumstances exist).

143. See id. § 102(7) (defining home state).

144. Id. § 201(a)(1).

145. Id. § 201(a)(2).

146. Id. § 102(13).

147. See, e.g., Schirado v. Foote, 785 N.W.2d 235 (N.D. 2010) (providing multifactor approach in deciding whether grandparents with whom the child had lived were “persons acting as a parent” under the state’s UCCJEA in order to determine child’s home state).

148. In Marler v. Lambrianakos, 2018 WL 4688220 (Ala. Ct. App. 2018), for example, the appellate court held that New York properly exercised jurisdiction over a paternal grandmother’s visitation petition, based on the fact that the child did not have a home state at the time the petition was filed, mother and child had a significant connection with New York, and substantial evidence was available there. Accordingly, Alabama courts were required to recognize and enforce the grandmother’s visitation order, despite the mother’s objections.

149. 28 U.S.C. § 1738A (2018). The UCCJEA “prioritizes home state jurisdiction in the same manner as the PKPA thereby eliminating any potential conflict between the two acts.” See UCCJEA, supra note 69, § 201 Comment.

150. 28 U.S.C. § 1738A(c)(2)(A) (2018).

151. 28 U.S.C. § 1738A(b)(2) (2018).

152. See UCCJEA, supra note 69, § 201 Comment (UCCJEA’s approach “eliminates the undesirable jurisdictional determinations which would occur as a result of differing state substantive laws on visitation involving grandparents and others.”).

153. See id.

154. See id. § 204.

155. Id. § 204(b), (c), (d) (requiring court with emergency jurisdiction to defer to other courts with jurisdictional priority). In Ex Parte J.M., 2018 WL 3946893 (Ala. Ct. App. 2018), the appeals court recognized the limited nature of emergency jurisdiction and held that the juvenile court could not use a grandparent’s emergency petition to enter dependency orders without first complying with the UCCJEA’s emergency jurisdiction provisions.

156. Troxel v. Granville, 530 U.S. 57, 74 (2000) (quoting Kennedy, J., dissenting, in id. at 101).

157. See UNCVA, supra note 1, § 8.

158. Id. § 7(b).

159. Id.

160. UCCJEA, supra note 69, § 205(a) (1997) (“Before a child-custody determination is made under this [Act], notice and an opportunity to be heard . . . must be given to all persons entitled to notice under the law of this State as in child custody proceedings between residents of this State, any parent whose parental rights have not been previously terminated, and any person having physical custody of the child.”).

161. UNCVA, supra note 1, § 9.

162. See generally John Lande & Forrest S. Mosten, Family Lawyering: Past, Present, and Future, 51 Fam. Ct. Rev. 20 (2013).

163. UNCVA, supra note 1, § 10.

164. Id. § 10(3). The Legislative Note to Section 10 makes clear that mediation and other forms of ADR may only be required for victims of domestic violence and like crimes if protective procedures are in place, whether as a matter of existing state law or by virtue of the bracketed language in Section 10.

165. Id.

166. Id. § 11.

167. Id. § 16.

168. Id.

169. See, e.g., Ariz. Rev. Stat. § 25-403(B) (2019) (requiring statutory findings in contested custody case). A trial court’s failure to make specific findings as to the statutory best interest factors is grounds for reversal. Nold v. Nold, 304 P.3d 1093, 1096–97 (Ariz. Ct. App. 2013).

170. See, e.g., Ky. R. Civ. Pro. r. 52.01 (requiring specific findings in trial to court without a jury).

171. See, e.g., Ga. Code Ann. § 19-9-3(a)(8) (2018) (requiring findings in custody decrees if requested by party); Warren v. Smith, 785 S.E.2d 25 (Ga. Ct. App. 2016) (reversing and remanding a custody decision because of the trial court’s failure to provide specific findings after requested to do so by the husband).

172. State laws often bar early modification actions unless a child faces serious harm. See, e.g., In re K.M.G., 2607 N.W.2d 248 (N.D. 2000) (noncustodial parent did not meet the statutory burden required to justify modification within two years of a prior order); Shoemake v. Kendrick, 2001 WL 548962 (Tenn. Ct. App. 2001), aff’d as modified, 90 S.W.3d 566 (Tenn. 2002) (child’s custody should not be disturbed unless there is a strong reason to do so, i.e., unless the change is necessary to prevent substantial harm to the child).

173. See generally Linda D. Elrod, Child Custody Practice and Procedure § 17.4 (2019).

174. 343 P.3d 1133 (Or. Ct. App. 2014).

175. See also Rennels v Rennels, 257 P.3d 396 (Nev. 2011) (once third party has been granted visitation, parent cannot assert parental presumption to withdraw visitation); Tracie F. v. Franco D., 188 So. 2d 231 (La. Ct. App. 2016) (parent must show material change in circumstance in modification action against nonparent).

176. Whilde v. Whilde, 904 N.W.2d 695 (Neb. 2017).

177. See, e.g., In re N.C.W., 17 N.E.2d 119 (Ohio Ct. App. 2014) (parent entitled to presumption in modification action after grant of third party custody). Cf. S.M. v. R.M., 92 A.3d 1128 (D.C. 2014) (mother’s agreement to place child with aunt was not a knowing waiver of her parental authority, and she was entitled to presumption in action to regain custody after completing drug treatment program).

178. UNCVA, supra note 1, § 15(b), (c).

179. See, e.g., Cal. Fam. Code § 3102(c) (2019) (visitation rights survive adoption by stepparent or grandparent of child); Ind. Code Ann. § 31-17-5-9 (West 2019) (visitation rights survive adoption by stepparent and other specified relatives); Utah Code Ann. § 30-5-2(3) (2019) (permitting visitation rights after adoption by stepparent).

180. See, e.g., Ala. Code § 26-10A-30 (2019) (permitting visitation requests by grandparents after adoption by stepparent and other specified relatives); 750 Ill. Comp. Stat. Ann. 5/602.9(b)(2) (West 2019) (permitting visitation after adoption by individual related to biological parents of child).

181. UNCVA, supra note 1, § 17.

182. Id.

183. Id. § 19.

184. See U.S. Census Bureau, supra note 3.

185. See, e.g., In re M.W., 374 P.3d 1169, 1178 (Wash. 2016) (refusing to create third-party visitation framework in face of legislative silence); Pitts v. Moore, 90 A.3d 1169, 1179 (Me. 2014) (remarking that it must devise its own scheme regarding de facto parenthood “in the absence of legislation”).

Appendix A: Uniform Nonparent Custody and Visitation Act

[PDF Download]: Appendix A: Uniform Nonparent Custody and Visitation Act

Appendix B: Issues of Style

[PDF Download]: Appendix B: Issues of Style

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Jeff Atkinson & Barbara Atwood

Jeff Atkinson is the Reporter for the UNCVA and Professor-Reporter for the Illinois Judicial Conference. He taught at DePaul University College of Law in Chicago from 1991–2017. Barbara Atwood is the Mary Anne Richey Professor of Law Emerita, University of Arizona James E. Rogers College of Law, and Vice Chair of the Drafting Committee for the UNCVA.