The "Family Relations" Doctrine: Extending Supreme Court Precedent to Custody Disputes

between Biological and Nonbiological Parents

Author(s): Mellisa Holtzman
Source: Family Relations, Vol. 51, No. 4, Families and the Law (Oct., 2002), pp. 335-343
Published by: National Council on Family Relations
Stable URL: http://www.jstor.org/stable/3700331
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The "Family Relations" Doctrine: Extending Supreme Court

Precedentto Custody Disputes Between Biological and
Nonbiological Parents*
Mellisa Holtzman**
the
Custody
disputesbetweenbiologicalandnonbiological
parentstypicallyaredecidedon thebasisof oneof twocustodydoctrines:
amountof legalandsocial
hasfacedcriticismandan extensive
parentalrightsor thebestinterestsdoctrine.Eachof thesestandards
scienceliterature
is devotedto pittingthesedoctrinesagainstoneanother.Otherscholarlyworkisfocusedonproposingalternatives
standards
andpreviously
to thesedoctrines.
arereviewed
Herethebenefitsandshortcomings
proposedalternative
of thetwodoctrines
are evaluated.Through
a detailedanalysisof 5 SupremeCourtcases,an entirelynewdoctrine-the"familyrelations"doctrine-is
andhis or her "persuggested.Thefamilyrelationsdoctrinegivesconsiderable
weightto thechild'scurrentandpast relationships
andtheadult's
the
child's
both
ceived"family.Itprotectsthechild'spresentpsychological
while
simultaneously
safeguarding
reality
interestin maintaining
ones.
orpossiblyevenaffecting
past relationships,
future

n the early1960s,researchby Bowlbyon socialattachment

theory startedto get recognitionwithin family law (Bowlby,

1969, 1973, 1980; see also Ainsworth, 1962). In 1973 Goldstein, Freud, and Solnit released a book that was premised on
the tenets of social attachmenttheory, which ultimately had a
profound impact on family law (Taub, 1984). Beyond the Best
Interests of the Child suggested that in orderto truly protectthe
best interests of children involved in custody disputes, courts
needed to go beyond their typical analysis of determiningthe
child's best interests based on the income, education, available
housing, available medical insurance, and so forth of the competing adults. Instead, courts needed to place the child with the
adult to whom he or she was psychologically attached-that is,
with the person to whom the child looked for daily emotional
care (Goldstein, Freud, & Solnit, 1973).
Goldstein, Freud, and Solnit's focus on the importanceof
psychological attachmentsmerged with the growing researchon
social attachmenttheory and a burgeoning literatureon the intersection of law and social science to stimulate an important
change in custody disputesbetween biological and nonbiological
parents. Courts began to decide these disputes by considering
which of the adults might best serve the child's interests,rather
than automatically placing custody with the biological parent
(Davis, 1987). However, doing so did not initiate a long-term
trend toward using only the best interests standardin these disputes; instead, it intensifiedthe conflict between children'srights
and parents' rights by aggravatingthe conflict between the two
custody doctrines.The implicationsof this conflict are discussed
here and two previously proposed alternativecustody doctrines,
the parentalpreference and the psychological parent doctrines,
are considered.Because even these alternativesfall shortof protecting both children and adults in a fair and consistent manner,
an entirely new custody doctrineis discussed, and the foundation
for this new doctrine is found in the rulings of five recent Supreme Court cases.
*This paper was presented at the 2001 American Sociological Association Meetings
in Anaheim, CA.

**Departmentof Sociology,Ball StateUniversity,Muncie,IN 47306 (mkholtzman@bsu.

edu).
Key Words:child custody,family, law, parental rights.
(Family Relations, 2002, 51, 335-343)

Background

Although the phrase "custody dispute" typically evokes images of two divorcing, biological parents engaged in a bitter
court battle, each vying for custody of their child, custody disputes also arise between biological and nonbiological parents.
The term "nonbiological parent" refers to anyone who is not
the biological parent of a child, but who has nonetheless acted
as a parent to the child. Nonbiological parents can be distinguished from persons who are "thirdparties" to a family unit,
such as babysitters,close family friends, and even grandparents
with whom the child has never lived. Nonbiological parentshave
lived with and economically and emotionally provided for the
child on a daily basis. Stepparents,gay and lesbian coparents,
foster parents, preadoptive or adoptive parents, and extended
family members, such as aunts and uncles or grandparentswith
whom the child has lived, are nonbiological parentsif they have
functioned as a parent to a child who is not their biological
offspring.
Custody disputes between biological and nonbiological parents typically are decided based on one of two custody doctrines:
the parental rights or the best interests doctrine. The parental
rights doctrine holds that biological parentshave a fundamental
right to the custody and control of their children and this right
cannot be disturbedexcept for the most cogent reasons (typically
parentalunfitness). In contrast,the best interests doctrineasserts
that custody decisions should be made with the child's best interests in mind, such that the person who is best able to meet
the child's physical and emotionalneeds should be awardedcustody (Salthe, 1990). Importantly,an underlying tension exists
between these two doctrines, thereby causing a significant
amount of doctrinal conflict in custody disputes involving biological and nonbiological parents. The best interests doctrine is
fundamentallyabout protectingthe welfare of children,whereas
the parentalrights doctrineis fundamentallyaboutprotectingthe
rights of adults within the confines of the traditionalfamily (e.g.,
biological parents raising their biological children). Children's
interests and adult'srights do not necessarily have to conflict. In
fact, for the vast majorityof children their interests and the parents' rights coincide; biological parentshave a right to the custody of their children, and it is in the children'sbest intereststo
be in the care of theirbiological parents(see Santoskyv. Kramer,
1982). However, in situations where children have developed
strong psychological attachmentsand parental-typerelationships

2002, Vol. 51, No. 4

335
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with adults other than theirbiological parents,theirbest interests

may conflict with the rights of their biological parents (see In
Interest of B.G.C., 1992; In re Adoption of Baby E.A.W., 1995;
Petition of Kirchner, 1995).

Safeguarding the welfare of children and protecting the

rights of biological parentsor traditionalfamilies are both highly
regardedculturalvalues that are stronglyrooted in this country's
history. States are continually engaged in efforts aimed at balancing a family's constitutionallyrecognizedright to privacy and
freedom from state interference (see Griswold v. Connecticut,
1965; Meyer v. Nebraska, 1923; Pierce v. Society of Sisters,

1925) and the state's interests, as parens patriae, in protecting

the welfare of children(see Prince v. Massachusetts,1944). This
balancing act is reflected in the fact that when disputes arise
between biological and nonbiological parents,the court is faced
with two relevant custody doctrines ratherthan one. Instead of
relying solely on the best interests doctrine, as is customary in
disputes between two divorcing biological parents, the courts
must balance the rights of adults and the interestsof childrenby
considering both the parentalrights doctrine and the best interests doctrine.In custody disputesbetween two biological parents,
a parental rights test is unnecessary because both parents are
equally entitled to custody based on their biological relationship
to the child; thus, judges pick between the adults by ostensibly
focusing on the needs of the child. However,in disputesbetween
biological and nonbiological parents, the competing adults are
not on equal footing because their genetic relationship to the
child differs. Instead the rights of the adults now must be
weighed in additionto the interestsof the child, so both custody
doctrines may be relevant.
The parentalrights doctrine allows judges to streamlinethe
decision-making process by choosing between the competing
adults strictly on the basis of their biological relationshipto the
child, whereasthe best interestsdoctrineallows judges to engage
in an analysis that is typical of divorce by choosing between the
adults on the basis of who can best meet the child's needs (see
Cahn, 1997). Although it is possible thatthe applicationof either
doctrine will result in the same outcome, it also is possible that
reliance on one doctrine over the other may result in a different
outcome. For instance, in cases where the child's psychological
attachmentfigure is the biological parent,the applicationof either doctrine will result in the same outcome-placement with
the biological parent. In cases where the child's psychological
attachmentfigure is the nonbiological parent, applicationof the
best interests doctrine will likely place custody with the nonbiological parent, whereas application of the parentalrights doctrine will likely place custody with the biological parent.In the
second scenario the doctrines conflict, and it is under these circumstances that judges are faced with a dilemma because they
must decide which doctrine should be paramountin deciding the
case.

Unilateral Adoption of the Best Interests Test

The potential for conflict between these two custody doctrines has led scholars to advocate for the unilateraladoptionof
one or the otherby the courts.For instance,Salthe (1990) argued
thatboth the child's needs and the biological parent'srightscould
be accommodatedthroughthe singular use of the best interests
doctrine (see also O'Keefe, 1991). The best interests doctrine
would continue to protect biological parents where they have
psychological relationshipswith their children;it also would pro-

tect children from interruptionsin their attachments,regardless

of whetherthose attachmentswere to biological or nonbiological
parents.
However, unilateraladoptionof the best interestsdoctrineis
unlikely to consistently protect the needs of children and adults
simultaneously.First, the best interests test can be used to surreptitiouslymaintainthe parentalrights doctrine("Alternatives,"
1963; Hill, 1991). In disputes between biological and nonbiological parents,courts frequentlyfind that it is in a child's best
intereststo be raised by his or her biological parents(see Northland v. Starr, 1998). Such a finding is based, in part,on the view
that biological parentsare the "natural"custodiansof their children, and that the nuclear family is the "foundationof society
and civilization" (Kulan v. Anderson, 1939, p. 991). Although
there is merit in this perspective, its indiscriminateapplication
enables courts to achieve an outcome that is consistent with the
parentalrights doctrinewithout actuallyemploying thatdoctrine.
Thus, it is possible that the best interestsdoctrine could be used
to protect parentalrights while simultaneously squelching children's needs.
Second, scholars have arguedthat the best interestsdoctrine
elevates children's needs too far above parents' rights. For instance, Richards (1992) argued that although the best interests
doctrine does go a long way toward protecting children's psychological relationships,it also may open the floodgates too far,
thereby allowing thirdparties who are not psychological parents
to bring suit against the biological parents simply because they
dislike the parents' lifestyle. Likewise, Kaas (1996) arguedthat
a best interests test is unconstitutionalprecisely because it does
elevate children'sneeds above parents' rights. Several Supreme
Court precedentshave protectedthe rights of biological parents;
thus, any application of the best interests test that would strip
away the constitutionallyrecognized special status of biological
parenthoodwould be unconstitutional(see Meyer v. Nebraska,
1923; Pierce v. Society of Sisters, 1925; Santosky v. Kramer,

1982). The interests of the child and the biological parentmust

be balanced against one another.To the extent that the best interests doctrine elevates children's needs above parents' rights,
it is unable to do this.
Finally, the best interestsdoctrineis unable to simultaneously safeguardthe interests of children and adults because it, like
most legal doctrines, is predicatedon an adversarialsystem of
law. The best interests doctrine pits adults against one another
with the assumptionthat only one can win. Thus, although the
child's needs matter,much of the actual focus of the dispute is
on the adults: one adult wins and one adult loses. The child's
"win" is assumed, because it is tied to the winning adult's outcome. However, it is naive to assume that the child always wins
in custody disputes. A win for one parentmay, in fact, signal a
loss for the child-loss of contact with the losing adult, loss of
an attachmentfigure, loss of previously establishedroutinesand
family patterns,and so forth. In fact, some scholarly work suggests that in many (if not most) situations, for the child to win,
both adults must win. Both parents could be said to win if the
child was able to maintain a relationship with both. Although
this is commonplacein the case of divorce, it is much less common in disputes between biological and nonbiological parents.
Focusing less on the competition between the adults and more
on the ways that they each might be able to serve the child's
needs over time would de-emphasize the current adversarial
quality of the best interests doctrine.
According to Bartlett (1984), custody law is based on the

336

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idea of "exclusive" parenthood, meaning the law recognizes

only one set of parents for each child (see also Boskey, 1995;
Henry, 1993; Woodhouse, 1994). In most states, children can
legally have only one mother and one father. This means that
stepparents,foster parents, and gay and lesbian coparentshave
no legally recognized relationshipwith their nonbiological children, and they cannot establish such a relationshipwithout severing the legal status of the biological parent.(Some states, such
as Vermontand California,have allowed same-sex coparentsto
adopt their nonbiological children without terminatingthe parental rights of the biological parentbut this is still rare).To the
extent that the adults and the children involved perceive these
nonbiological relationshipsto be familial, parent-childbonds, the
notion of exclusive parenthooddoes not meet their needs. It does
not recognize that for children a parent-childrelationship can
exist with more than one parentor set of parents.This suggests
that the notion of exclusive parenthoodthat is enshrinedin custody doctrine, including the best interests doctrine,makes it difficult for the interests of children and adults to be served simultaneously.

Unilateral Adoption of the Parental Rights Test

Singularuse of the parentalrights doctrinealso would prove
to be an unsatisfactoryway to accommodatechildren'sinterests
and adults' rights. First, this doctrineresults in the adult'srights
being elevated far above the child's, thereby renderingthe doctrine incapableof adequatelyprotectingthe interestsof children.
By conceiving of childrenas persons to whom biological parents
have "rights," it is impossible for the parentalrights doctrineto
simultaneously protect the independent rights of children and
adults (see Woodhouse, 1992). Relatedly, the doctrine ignores
the fact that the child's psychological attachmentsmay lie outside the biological family ("Alternatives," 1963; Bartlett,1984).
Second, the parentalrights doctrine, like the best interests
doctrine, is predicatedon an adversarialmodel, so it does little
to promote notions of "nonexclusive parenthood" (Bartlett,
1984). By focusing on the need to find the biological parentunfit
to deny custody, the doctrineimplies only one winner and treats
the child's win or loss as a nonissue. If the biological parentis
fit, he or she wins custody and the nonbiological parentloses; if
the biological parentis unfit, he or she loses and the nonbiological parentwins by default. However, either scenario may result
in a loss for the child, if his or her long-termbest interestswould
be promotedby maintainingan attachmentto both parentalfigures (Bartlett; Boskey, 1995; Bowlby, 1969; Erickson, 1963).
Relatedly, a finding of unfitness that results in the termination
of the biological parent'srights, in some instances, may hinder
the child's long-term interests. Leaving open the possibility for
establishing attachmentslater in life is importantbecause, although children (especially young children)initially may be uninterested in relationships with biological parents with whom
they have had little contact or scarcely know, their curiositymay
be peaked later in life. Thus, whereas it may be in the child's
best interests to remain in the custody of the nonbiological parent, it may not be in the child's best interests to simultaneously
sever all ties to the biological parent.Even if a relationshipwith
both sets of parents (biological and nonbiological) may be unwarrantedor unimportantat one stage of a child's life, fostering
relationships with both sets of parents may be very important
emotionally for the child at a later stage of life (see Eagle, 1994;
Woodhouse, 1994). Overall, then, society's interestin safeguard2002, Vol. 51, No. 4

ing the welfare of children cannot be easily accommodated

throughthe use of the parentalrights doctrine.

Alternative Custody Doctrines

Because unilateraladoption of either the best interests doctrine or the parentalrights doctrine would do little to simultaneously meet the dual goals of society to protect children and
adults, scholars have proposed a variety of alternativecustody
doctrines-most notably of which are the parental preference
doctrine and the psychological parentdoctrine (see Davis, 1987;
Kaas, 1996; Richards, 1992). Both of these are basically a modification of the original custody doctrines. The parentalpreference doctrinebuilds on the tenets of the parentalrights doctrine,
whereas the psychological parent doctrine builds on the tenets
of the best interests doctrine.

The Parental Preference Doctrine

According to proponentsof the parentalpreferencedoctrine,
all custody cases should begin with a preferencefor the biological parent,but this preference should be rebutableon the basis
of the needs of the child (Kaas, 1996). Unlike the parentalrights
doctrine, which protectsthe rights of biological parentsirrespective of the needs of the children,undera parentalpreferencetest
the preferencefor the biological parentcan be overcome. Thus,
even fit biological parentscould lose custody underthis doctrine,
if the child's emotional and psychological interests would best
be served by remainingin the custody of the nonbiological parent (see In re Marriage of Buttrey, 1995). Proponents of this
doctrine assert that a parentalpreferenceis the best way to protect adults and children because the importanceof the parentchild relationshipis not sacrificedfor the needs of only the adults
or only the children.
Althoughthe parentalpreferencedoctrineis an improvement
over the best interests and parental rights doctrines, it is still
subject to the same criticisms that underminedthe effectiveness
of the original doctrines. Like the parental rights doctrine, the
parentalpreferencedoctrineremains adult-centered.Ratherthan
focus on the interests of the adults and children simultaneously,
the emphasis remains on the competing adults and who among
them has more rights to the child. Not only does the doctrine
continue to be adult-centered,but it also precludes the recognition of multiple parents by continuing to conceive of custody
outcomes in a winner-take-allfashion.

The Psychological Parent Doctrine

The psychological parentdoctrinewas first introducedas an
alternativeto the best interests and parentalrights doctrines in
1963 ("Alternatives," 1963; see also Davis, 1987). Like the best
interests doctrine,this doctrinefocuses on the needs of the child,
but it does so by attemptingto determinewho, among the competing adults, is the child's psychological parent. The psychological parentis the person with whom the child has his or her
primary affection-relationship.Proponentsof the doctrineargue
that emotional attachmentsrather than biological relationships
are fundamentalfor healthy child development and are, therefore, most crucial for determining custody (Goldstein et al.,
1973). Although the best interestsdoctrineand the psychological
parent doctrine seem similar in this context, they are not necessarily so. In using the best interests doctrine,judges may consider the child's psychological attachmentsas part of a whole
list of criteria (including the income, housing, and insuranceof

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337

z
u

0
w

the adults) to be accounted for in determiningthe child's best

interests. In using the psychological parentdoctrine,psychological attachmentsare the only criteriato be considered.
This custody doctrine is problematic.First, the doctrinehas
been criticized not necessarily on the basis of the outcomes produced but on the basis of the theory upon which it is grounded.
Given that the psychological parentdoctrine is based on the tenets of psychoanalysis-a controversialtheory in itself--scholars argue that it may be unwise to use the doctrine in legal
decision-making (Davis, 1987; Waters & Noyes, 1983). Additionally, this doctrine, like the others, precludes the recognition
of multiple parents.As Watersand Noyes note, because the doctrine stresses the importanceof a single attachmentfigureit "underestimates"the viability of sharedparentingas a family structure" (p. 505). Research demonstratesthat children are capable
of and even profitfrom multiplesimultaneousattachments(Ainsworth, 1989; Lamb, 1977). People form a variety of attachments
throughout their lives, and each of these relationships offers
unique benefits to the participants(see Ainsworth, 1989). Just as
adults benefit in different ways from relationshipswith spouses,
children, and close friends, it can be expected that children,too,
will benefit from the maintenanceof multiple attachments.However, none of the currentcustody doctrines, including the psychological parent doctrine, promote custody awards that recognize nonexclusive parenthood.

A New Custody Doctrine

On the basis of the problems each of these doctrines presents, a new doctrine that accommodatesadults' and children's
rights simultaneouslyis needed. Moreover,for a new doctrineto
have widespreadeffect, it needs to be based on more than scholarly debate and social science research.The debate and research
surroundingthe psychological parentdoctrinewas extensive and
its impact on custody law was profound(Davis, 1987; Guggenheim, 1983; Smith, 1978). Yet, ultimatelyeven the effect of this
doctrine was piecemeal and sporadic.For instance, althoughthe
theory of the psychological parent doctrine influenced judicial
decision-makingin the state of New Yorkimmediatelyfollowing
its introductioninto the law, it did not have the expected longterm effect. Judges apparentlyretreatedfrom the doctrineduring
the 1980s (see Davis; see also Matter of Adoption of Male M,
1980; Dennis T. v. Joseph C., 1981). In contrast,judges in the
state of Illinois were unaffectedby the trendtowardthe psychological parent doctrine. Illinois has a long history of protecting
parents' rights and that tendency remainedsteady even after the
introductionof psychological parenttheory into the law (see In
re Townsend's Custody, 1980; People ex rel. Dizney v. Witt,
1975; Petition of Kirchner, 1995). Clearly, social scientific research and scholarly articles recommendinga new custody doctrine are not enough to affect widespread changes in custody
law.
However, using SupremeCourt precedentas the basis for a
new custody doctrine may be the key to getting it accepted because it would significantly bolster the doctrine's legal legitimacy. U.S. SupremeCourtdecisions set legal precedentsfor the
entire country. As such, any doctrine predicated on Supreme
Courtrulings would likely be adoptedby each of the states more
readily than one predicatedonly on social science research.
The basis for a new custody doctrinecan be found in a series
of unwed father cases decided by the Supreme Court between
1972 and 1989. These cases have been interpretedto hold that

an unwed father'sright to his child is constitutionallyprotected

only if he establishes a relationship with the child. In short, a
biological connection to the child is not enough to ensure custody and visitation rights; a father must forge an emotional connection with the child (Hill, 1991; Visconti, 1988). However,
several recent scholars suggested that all of the unwed father
cases should be interpretedto protect family units ratherthan
simply parent-childrelationships(Dolgin, 1993; Forman, 1994;
McCarthy,1988). I argue that the cases protectboth established
relationshipsand family units, albeit inconsistently.Importantly,
it is precisely this inconsistency by the Courtthat allows for the
formation of a new custody doctrine that I call the "family relations doctrine." The remainderof this article analyzes the unwed father cases to demonstratehow these cases give rise to the
family relations doctrine.

The Unwed Father Cases: Protecting Relationships,

Family Units, or Both?
The Supreme Court decided its first unwed father case in
1972. In Stanley v. Illinois (1972), the biological fatherof three
children born out of wedlock appealed from a decision by the
Illinois Supreme Court to sustain a declarationof dependency
made by the state of Illinois with respect to the children. Peter
Stanley had cohabited with the biological motherof his children
intermittentlyfor 18 years, had developed and maintaineda parental relationshipwith all of his children, and had never demonstratedhimself to be an unfit parent. Following the death of
the children's mother,the state of Illinois declared his children
to be dependentsand wards of the state;consequently,they were
placed with court-appointedguardians.Stanley appealed, arguing that the placement of his children with guardianswas a violation of his due process and equal protectionrights given that
he did not firstreceive a hearingregardinghis fitness as a parent.
He was presumedunfit based solely on the fact that he was not
marriedto the children'smother.The U.S. SupremeCourtagreed
and reversed the state court ruling. Importantly,although the
Court's opinion does not discuss Stanley's relationship to his
children explicitly, the decision does foreshadow the relational
emphasis that is present in future cases. By recognizing Stanley
as a parent where prior Illinois law had defined only wed biological fathers(and wed or unwed biological mothers)to be parents, the Court implied that relationshipsare a defining feature
of parenting.
Perhapswithout fully articulatingit, the Courtalso was suggesting that, for unwed fathers,neitherblood, marriage,nor parent-child relationships are enough to independently endow fathers with custodial rights. Instead, they also must establish a
relationship with the child's mother. The Court hinted at this
when it justified its decision to reverse the Illinois Supreme
Court by noting that "the integrity of the family unit has found
protectionin the Due Process Clause of the FourteenthAmendment.., .the Equal Protection Clause of the FourteenthAmendment..., and the Ninth Amendment" (p. 651). In short, because
the Illinois decision infringed upon the integrity of Stanley's
family unit, it was unconstitutional.
The Courtwas more clear in the articulationof its decisionmaking rationale in Quilloin v. Walcott (1978). Here the Court
ruled in favor of a Georgia statute that allowed the adoption of
a child by his stepfatherover the objection of the child's biological father,Leon Quilloin. In this case, the biological fatherhad
had little to no contact with the child for 11 years. Because the
Family Relations

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father "had not taken steps to supportor legitimate" his son, the
Georgia Supreme Court found, and the U.S. Supreme Court
agreed, that he was not entitled "as a matterof due process and
equal protectionto an absolute veto over adoption of his child"
(p. 253). Instead, "any constitutionallyprotectedinterest [Quilloin] might have had was lost" on the basis of his failure to
legitimate his son (p. 254). Thus, one could argue that according
to the Court,Quilloin forfeited his rights to his child because he
did not establish a relationshipwith him. In fact, the Courtjustified its decision, at least in part, by arguing that Quilloin had
not only "never exercised actualor legal custody over his child,"
but he also had never been responsible for "the daily supervision, education, protection,or care of the child" (p. 256).
Again, although Quilloin was held accountable for never
establishinga parent-childrelationshipwith his son, a close reading of the case demonstratesthat the Court also was thinking
about Quilloin's failure to establish a "family unit" with the
child and his mother.At the outset of the opinion, Justice Marshall noted that Quilloin and the child's mother "never married
each other or established a home together" (p. 247). Even more
important,the Court emphasized that Quilloin had never been
"a defacto memberof the child's family unit," but the stepfather
who was proposing to adopt the child "was part of the family
unit in which the child was in fact living" (p. 252-253, emphasis
in original). The Court went on to justify its decision to uphold
the Georgia SupremeCourt'sruling on the basis of the fact that
"the result of the adoptionin this case is to give full recognition
to a family unit already in existence" (p. 255).
A year later in Caban v. Mohammed(1979) the Court invalidated a similar New York statute that enabled two children
to be adopted by their stepfather over the objections of their
biological father. However, unlike Quilloin, Abdiel Caban, the
father in this case, had established a "substantial"parentalrelationship (p. 387) with his children, and he had lived with their
motherfor 5 years. In fact, duringthe years they cohabited,they
representedthemselves as husbandand wife, althoughthey were
not married;even after their separationCaban continued to exercise visitation with his children.The SupremeCourtconcluded
that the New York statute that allowed unwed mothers to withhold consent regardingthe adoptionof their childrenbut did not
similarly allow unwed fathers to withhold consent was unconstitutionalon the basis of the Equal ProtectionClause. The Justices reasonedthat "the presentcase demonstratesthat an unwed
fathermay have a relationshipwith his childrenfully comparable
to that of the mother,"for after all, Caban,the children'smother,
and the childrenhad "lived together as a naturalfamily for several years" and "membersof this family, both motherand father
participatedin the care and support of their children" (p. 389,
emphasis added). Ultimately, Caban retained his rights to his
children.
The fourth unwed father case to come before the Supreme
Court, Lehr v. Robertson (1983), was perhapsthe most explicit
in its discussion of parent-childrelationshipsand the most ambiguous in its discussion of the importanceof a "family unit."
In this case the biological father,JonathanLehr, was unable to
prevent the adoption of his daughterby her stepfatherbecause
Lehr had "never had any significant custodial, personal, or financial relationship" with her, nor did he "seek to establish a
legal tie [with her] until after she was two years old" (p. 262).
The Courtrefusedto protectLehr'sinterestin his daughtersolely
on the basis of his biological tie to her. Without an established

relationship, he did not possess any constitutionallyprotected

rights. Justice Stevens made this point explicit when he wrote:
The significance of the biological connectionis thatit offers
the natural father an opportunitythat no other male possesses to develop a relationship with his offspring. If he
grasps that opportunity and accepts some measure of responsibilityfor the child's future,he may enjoy the blessings
of the parent-childrelationshipand make uniquely valuable
contributionsto the child's development. If he fails to do
so, the Federal Constitutionwill not automaticallycompel a
state to listen to his opinion of where the child's best interests lie. (p. 262)
Thus, the Court was clear that the lack of a parent-childrelationship prevented Lehr from exercising any decision-making
power with respect to his daughter.
The Courtdid imply that Lehr's failure to establish a family
unit with his daughterand her mother was an importantfactor
as well. The Justices noted that, like the Quilloin case, allowing
the adoptionin this case would "give full recognitionto a family
unit already in existence" (p. 263). Relatedly, the adoption
would give "legal permanence"to the child's relationshipwith
her stepfather-a relationshipthe two had enjoyed for nearlytwo
years (p. 264).
In the final case to come before the Court, Michael H. v.
Gerald D. (1989), the Justices were asked to invalidate a California statutethat presumedany child born into a marriagewas
the legitimate offspring of that marriage.The appellant,Michael
H., had fathered a child with a woman who was married to
someone else, Gerald D. Because the child was born duringthe
woman's marriageto GeraldD., by virtue of the Californiastatute, he was presumed to be the child's father.In short, Michael
H. had no recognized legal rights to his biological daughterbecause the law assigned the status of parentof GeraldD. Michael
H.'s relationship with his daughter was not merely biological.
The child's mother had allowed Michael H. to establish a relationship with the child; in fact, she referredto him as "daddy"
(p. 144). Thus, when his relationshipwith his daughterwas involuntarilycut off, Michael H. sued for visitation rights. He was
denied because he was not the recognized legal father of the
child. Hence, he brought suit to have the California statutethat
deemed Gerald D. to be the legal father declared invalid.
Michael H. argued that the prior unwed father cases established a precedentthat protectedhis rights, because he was the
child's biological father, and he had an established relationship
with her. The Court rejected Michael H.'s interpretationof the
prior cases as too narrow. They argued that the unwed father
cases did not rest merely on "biological fatherhoodplus an establishedparentalrelationship"but upon "the historicrespectindeed, sanctity would not be too strong a term-traditionally
accordedto the relationshipsthatdevelop within the unitaryfamily" (p. 123). The Justices went on to note that "the family unit
accorded traditionalrespect in our society, which we have referred to as the 'unitary family,' is typified, of course, by the
maritalfamily" (p. 124). Consequently,they ruled that the family unit that was already established between the mother, her
husband (Gerald D.), and the child was accorded constitutional
protection.Michael H.'s desire to infringe upon that family unit
by having his status as a parent to the child legally recognized
was not accorded such protection.
Ultimately, by invoking the family unit approach,the final
unwed father case ostensibly elevated that decision-makingra-

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tionale above the relationalapproach.On the basis of this, some

scholars argued that the rulings of each prior case also were
fundamentallyabout establishedfamily units: Those fatherswho
did establish a family unit with the child's mother prevailed in
their efforts to have rights to their children whereas those who
did not failed (Dolgin, 1993). Perhapsit is not that simple. The
dissent in Michael H. asserted forcefully that the cases should
be read to protect parent-childrelationships(see p. 142-144). It
appears that the Justices, themselves, were not entirely precise
in their decision-making; sometimes relationships were paramount (as in Lehr), sometimes family units were paramount(as
in Quilloin), and sometimes both were paramount(as in Caban).
This suggests that both relationshipsand family units were importantto the Justices in all cases. Because their applicationwas
not clearly articulatedor precisely defined, inconsistencies developed in their approach.It is these inconsistencies that allow
for the formationof a new custody doctrinethat is still founded
upon this existing Supreme Court precedent.

Extending the Unwed Father Cases

0

To summarize,each of the five unwed father cases emphasizes the importance of relationships and family units. The
Court'srulings in Stanley and Caban enabledunwed fatherswho
had established relationships with their children and who had
lived with the children's mothers in a "family unit" to retain
rights to their children. In Quillion and Lehr the unwed fathers
had their rights to their childrenterminatedbecause they did not
have established relationshipswith their children, and they had
never lived in a family unit with the mothers of their children.
Finally, in Michael H. the unwed father lost rights to his child,
despite his established relationshipwith her, because her mother
was married to another man and the child was born into that
family unit. I argue that a reading of the unwed fathercases that
recognizes the emphasis on both relationshipsand family units
and recognizes the inconsistencies and ambiguities in the ways
the Justices appliedthese two decision-makingcriteria,opens the
door for a new custody doctrine that protects established relationships and family units. I call this the family relations doctrine.
According to this doctrine, custody disputes should be decided by placing physical custody with the parentsto whom the
child is psychologically attached.Research suggests that attachments are based on the amountand kind of contact the child has
with the adult (Curtis, 1980; Goldstein et al., 1973). Daily contact with a parent and daily reliance on the parent to meet the
child's needs will increase the level of attachmentbetween the
child and the adult. Thus, although time and contact are not
perfect indicators of attachment,they do provide some insight
into the relationshipthat exists between the child and the adult.
Attachment also can be assessed on the basis of information
provided by the child, such as a stated desire to live with a
particularparent or references to the nonbiological parents as
"mom" and "dad." Typically the parentor parentsin the child's
currentfamily unit will be the adults to whom he or she is psychologically attached. By focusing on the current family unit,
the family relations doctrine protects continuity within the family.
Physical custody with one parent or set of parents would
not necessarily preclude legal rights vested in the other parent
or parents.Because the doctrineis not inherentlyadversariallike
the others, it emphasizes relationships rather than competition
between adults. Consequently, the adversarial,winner-take-all

flavor is gone, so the doctrine does not preclude recognition of

multiple parents.If relationshipsexist between the child and both
the biological and nonbiological parents, the emphasis on developed relationshipsensures maintenanceof those relationships
by legally recognizing the parentalstatus of both sets of adults.
By vesting rights in both the biological and nonbiological parents, this doctrinefacilitates continuedrelationshipsbetween the
parents and the child through shared decision-making for the
adults and continued visitation between the noncustodialparent
and the child. This is especially importantfor gay and lesbian
coparents or former stepparentswho typically have no legally
recognized relationship to their nonbiological children, and
therefore,are not entitled to visitation with the childrenover the
objections of the biological parent (see Kazmierazakv. Query,
1999). The family relations doctrine also does not necessarily
preclude the establishmentof multiple relationships if they do
not already exist. Overall, this doctrine goes a long way toward
protectingthe interests of children and adults simultaneously.
Protectingthe interestsof children and adults by preserving
their attachmentsto one anotheris a worthy goal. Researchsuggests that social attachmentsare a key to psychological wellbeing and that insecure or severed attachmentsare associated
with psychological maladjustmentand psychopathology(see Rosenstein & Horowitz, 1996; Ross, 1995). For instance, Khaleque
and Rohner (2002) found strong supportfor the contention that
perceived parentalrejectionresults in maladjustmentin children.
Although this research was focused on biological parent-child
relationships,it can be assumed that the perceived parentalrejection that would likely accompany the loss of a nonbiological
parentwould be psychologically damaging as well.
Using SupremeCourtprecedentto fashion this new doctrine
is not without obstacles. First, the Justices certainly did not intend for the family unit argumentto apply outside the confines
of the biological family. They suggested as much in Lehr when
they noted that "the adoption does not affect [the child's] relationship with her mother", but it does give "legal permanence"
to her relationshipwith her stepfather(Lehr v. Robertson, 1983,
p. 264). Likewise, in Quilloin they noted that the case was not
one in which "the proposed adoptionwould place the child with
a new set of parents";instead, the result of the adoption would
be "to give full recognitionto a family unit alreadyin existence"
(Quilloin v. Walcott, 1978, p. 255).
Second, despite my contentionthat the family relationsdoctrine would accommodatecontact with multiple parents,the Justices clearly did not intend for their rulings to be used to advocate the idea of nonexclusive parenthood.They explicitly rejected such an argumentin Michael H. when they assertedthat,
despite the fact that it might be to the child's benefit to maintain
relationshipswith both Michael H. and Gerald D., the idea that
"a State must recognize multiple fatherhoodhas no supportin
the history or traditionsof this country" (p. 131), for after all,
"natureitself makes no provision for dual fatherhood"(Michael
H. v. Gerald D., 1989, 118).
Addressing some of the ambiguities and inconsistencies inherent in the Court's decisions will help overcome these obstacles. First, the Court left the importanceof biology in the decision-makingprocess ambiguous.Because four of the five unwed
father cases involved disputes between a biological father and a
biological mother and her husband,the Justices were never in a
position to have to choose unequivocally between a biological
parentand a nonbiological parent.Regardless of their decisions,
the children would remain in the custody of a biological parent.

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Consequently,althoughthe biological relationshipswere certainly an issue, the establishmentof parent-childrelationshipsand

family units were pushed to the fore and used to differentiate
between those parents who had constitutionallyprotectedinterests in their children and those who did not.
In short, I am suggesting that the Court was at all times
faced with issues of biology because the biological fatherin each
case stood to gain or lose access to his children on the basis of
the Court'sdecision. However,I also am suggesting thatthe issue
of biology nonetheless remainedimplicit, as four of the five cases were essentially disputesbetween two biological parents-the
custodial biological mother who was attemptingto limit the biological father's rights to his children and the biological father
who was attempting to exert those rights. Consequently, the
competing parties could not be distinguished on the basis of
biology alone, so the Justices differentiatedbetween them on the
basis of established relationships. Had the Justices been faced
with disputes between an unwed biological father and the children's nonbiological parent (e.g., stepfatherswho retained custody of their stepchildren following the biological mother's
death), the emphasis placed on the biological relationshipscertainly would not have remainedambiguous.This means that the
importanceof biology, relationships,and family units never has
been determinedrelative to one another.Because the importance
of biology remainedimplicit in the Court's analysis, the unwed
father cases created precedents that effectively elevated established relationshipsand family units above biological ties. Two
biological fathers won their cases because they had established
relationshipswith their children and with their children'smothers; two biological fathers lost their cases because they had not
established such relationships;and one biological fatherlost his
case because he had done one of these things but not the other.
In and of itself, biology was not a determinativefactor in the
decision-makingprocess.
Even though the issue of biological relatedness was not a
key factor in the decision, the cases had unforseenconsequences
for disputes between biological and nonbiological parents. In
three cases a loss by the biological father resulted in the nonbiological father gaining recognized legal status as the child's
parent;the stepfathersin Quilloin and Lehr were able to adopt
their stepchildren,and the "presumed"fatherin Michael H. was
able to maintain his legal status as father even though he was
not the child's biological or adoptive parent.Without explicitly
articulatingit, or possibly even recognizing it, the Justices established precedents that emphasized established nonbiological
relationshipsover biological ones. It is possible that in leaving
the importance of biology ambiguous (or assumed) the Court
paved the way for these precedentsto be extendedto cases where
the dispute is between a biological and a nonbiological parent.
For instance, the precedents could plausibly be used to argue
that established parent-child relationships and family units
should be the determinativefactors in deciding the case rather
than biology. Interpretedin this way, the family relations standard could be used to protect established relationshipswithin a
nonbiological family unit.
Second, the Justices were inconsistentin their applicationof
the idea of a family unit. In some cases, the Court protected
previous biological family units, whereas in others it protected
currentnonbiological family units. In each case, the family unit
that was protected by the Court was one that either no longer
existed but had been composed of both biological parentsduring
its duration(previous biological family unit) or currentlyexisted

and contained one adult who was not biologically related to the
child (current nonbiological family unit). In Caban the Court
noted that the biological father,mother,and children had at one
time lived together in a family unit. Consequently,the Justices
made their decision to protect Caban'srights on the basis of the
importanceof protectingprevious biological family units. Even
though a new nonbiologicalfamily unit also had been established
between the children, their biological mother, and their stepfather, the Court gave scant attention to the current family unit.
The Justices apparentlysaw no reason to give explicit protection
to that relationship.In contrast,in Quilloin and Lehrno previous
family unit existed involving both biological parents but the
Court continuedto stress the importanceof family units by emphasizing the child's currentnonbiological family unit. In both
cases, the Courtjustified its decision to sever the rights of the
biological fathers to their children because doing so would legitimate the family units that already existed between the child,
the biological mother,and the stepfather.In these cases, current
nonbiological family units did enjoy explicit protection. In essence, if the Court had two family units to choose from (one
current and one previous), it emphasized the prior biological
family unit over the currentnonbiological family unit. When the
Court was faced solely with a currentnonbiological family unit,
it protectedthat family unit; in doing so biological fatherswere
divested of rights to their children. Ultimately, the Justices recognized the importance of current nonbiological and past biological relationshipsin the life of a child but they refused to do
so simultaneously.This refusal to validate both types of family
units simultaneously representsan inconsistency in the Court's
analysis of which the Justices were likely unaware. The Court
explicitly rejected the notion of nonexclusive parenthoodin Michael H.; yet, the Court'sown precedentseffectively encapsulate
the notion of nonexclusive parenthoodby recognizing the importance of past and present relationships.Nonexclusive parenthood validates past and present relationshipby suggesting that
courts allow children to maintainties to multiple sets of parents.
Given that the unwed father precedentsimplicitly supportnonexclusive parenthood,resolving the inconsistency between the
Court's explicit statementsand implicit outcomes means recognizing that, regardlessof their intent, the Justices ultimatelydid
create precedentsthat supportnonexclusive parenthood.In short,
the Court's recognition that both types of relationshipsare important is more significant than its refusal to validate each simultaneously.Thus, by using these precedentsto framethe family relations doctrine to accommodatepast and present relationships, the doctrine could be used to protect children and adults
by recognizing multiple parents.

Conclusion
Here I have argued that recent Supreme Court precedents
set the stage for a new custody doctrine-the family relations
doctrine. The hallmarkof this new doctrine is that it serves the
interests of children and adults simultaneouslyby focusing custody decision-makingon past, present, and future emotional relationships. In other words, the doctrine has the ability to preserve multiple families. Predicating the doctrine on Supreme
Court precedentincreases the legitimacy and the likelihood that
the doctrine is adopted by the states. Widespreadacceptanceof
the doctrine would be beneficial precisely because it eliminates
the problemsassociatedwith the best interestsand parentalrights
doctrines. Specifically, it accommodatesthe interestsof children

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and adults simultaneously.The family relations doctrinecan account for the psychological attachmentsof children and adults
because it emphasizes emotionalrelationshipsover biological relatedness. It also promotes the idea of nonexclusive parenthood
because it is not based on winner-take-allconcepts and can preserve multiple family units.
If accepted on a widespreadbasis, it must be noted that this
doctrine certainly would not eliminate all problems in custody
disputes between biological and nonbiological parents. Even if
accepted theoreticallyor ideologically, the idea of multiple parents would not be without problems in implementation.For instance, among divorcingcouples with joint legal or joint physical
custody, it can be difficult for the adultsto "share" childrenand
cooperate with one another with respect to such things as visitation times, vacation planning, holiday get-togethers,disciplinary styles, and so forth. If cooperation is difficult for two biological parents,it seems reasonableto assume that child sharing
would be even more contentious when some of the adults involved are not biological parents.
Although these sorts of problems are certainly important,
they are not so severe as to completely preclude the adoption
and implementationof the family relations doctrine. The problems associated with joint custody among divorcing couples are
widely recognized; yet, the practice of awardingjoint custody
still predominates (Hess, 1986). Moreover, although research
finds that exposure to ongoing conflict between divorcedparents
is more detrimentalto children than no contact with the noncustodial parent (see Opie, 1993), much research suggests that
maintainingrelationshipswith both parentsis a crucial factor in
children'sadjustmentto divorce (Amato & Gilbreth,1999; Opie;
Simons, Whitbeck, Beaman, & Conger, 1994; Wall & Amadio,
1994). We should expect that in the context of biological versus
nonbiological disputes, maintainingrelationshipswith both sets
of parentsgenerally would be beneficial to the child, despite the
potential problems associated with multiple families.
Implementing the family relations standardmeans getting
family lawyers and family court judges to utilize this doctrine.
The case analysis here can serve as the catalyst in this process.
Lawyers and judges can use the logic outlined in this article to
craft an argumentin court that would introduce the family relations doctrine. From there, reliance on precedent,debate over
the new doctrine, and continued adaptationof the doctrine will
help to spur its adoption in other courts and states.

References
-.(1963). Alternativesto "parentalrights" in child custody disputes involving
third parties. Yale Law Journal, 73, 151-170.
Ainsworth, M. (1962). The effects of maternaldeprivation:A review of findings
and controversyin the context of researchstrategy.In Deprivationof maternal
care: A reassessment of its effects (Public Health Papers No. 14). Geneva:
World Health Organization.
Ainsworth, M. D. (1989). Attachmentsbeyond infancy. American Psychologist,
44, 709-716.
Amato, P R., & Gilbreth,J. G. (1999). Nonresidentfathers and children'swellbeing: A meta-analysis.Journal of Marriage and the Family, 61, 557-553.
Bartlett, K. T. (1984). Rethinking parenthoodas an exclusive status: The need
for legal alternativeswhen the premise of the nuclear family has failed. Virginia Law Review, 70, 879-963.
Boskey, J. B. (1995). The swamps of home: A reconstructionof the parent-child
relationship. Universityof Toledo Law Review, 26, 805-853.
Bowlby, J. (1969). Attachmentand loss (Vol 1). New York:Basic Books.
Bowlby, J. (1973). Attachmentand loss (Vol 2). New York:Basic Books.
Bowlby, J. (1980). Attachmentand loss (Vol 3). New York: Basic Books.
Caban v. Mohammed,441 U.S. 380 (1979).

Cahn, N. R. (1997). Reframingchild custody decisionmaking.Ohio State Law

Journal, 58, 1-60.
Curtis,C. (1980). The psychological parentdoctrinein custody disputesbetween
foster parents and biological parents. Columbia Journal of Law and Social
Problems, 16, 149-192.
Davis, P. C. (1987). "Thereis a book out... ": An analysis of judicial absorption
of legislative facts. HarvardLaw Review, 100, 1539-1604.
Dennis T. v. Joseph C., 82 A.D.2d 125 (NY App. Div., 1981).
Dolgin, J. L. (1993). Just a gene: Judicial assumptions about parenthood.University of California Law Review, 40, 637-694.
Eagle, R. (1994). The separationexperience of childrenin long-term care: Theory, research and implications for practice. American Journal of Orthopsychiatry, 64, 421-434.
Erickson, E. (1963). Childhoodand society. New York:Norton.
Forman, D. L. (1994). Unwed fathers and adoption: A theoretical analysis in
context. Texas Law Review, 72, 967-1045.
Goldstein, J., Freud, A., & Solnit, A. (1973). Beyond the best interests of the
child. New York:Free Press.
Griswold v. Connecticut,381 U.S. 479 (1965).
Guggenheim, M. (1983). The political and legal implications of the psychological parentingtheory. Review of Law and Social Change, 12, 549-555.
Henry, V. L. (1993). A tale of three women: A survey of the rights and responsibilities of unmarriedwomen who conceive by alternativeinseminationand
a model for legislative reform. American Journal of Law and Medicine, 19,
285-311.
Hess, P M. (1986). Promoting access to access with divorcing parents. Social
Casework,67, 594-604.
Hill, J. L. (1991). What does it mean to be a "parent"?The claim of biology
as the basis for parentalrights. New York UniversityLaw Review, 66, 353420.
In Interestof B.G.C., 496 N.W.2d 239, (IA S. Ct., 1992).
In re Adoption of Baby E.A.W, 658 So.2d 961 (FL S. Ct., 1995).
In re Marriageof Buttrey, 538 N.W.2d 322 (IA S. Ct., 1995).
In re Townsend'sCustody, 413 N.E.2d 428(IL App. Ct., 1980).
Kaas, C. W. (1996). Breaking up a family or putting it back together again:
Refining the preference in favor of the parent in third-partycustody cases.
Williamand Mary Law Review, 37, 1045-1136.
Kazmierazakv. Query, 736 So.2d 106 (FL App. Ct., 1999).
Khaleque,A., & Rohner,R. (2002). Perceived parentalacceptance-rejectionand
psychological adjustment:A meta-analysis of cross-culturaland intracultural
studies. Journal of Marriage and Family, 64, 54-65.
Kulan v. Anderson, 20 N.E.2d 987 (IL App. Ct., 1939).
Lamb, M. (1977). Father-infantand mother-infantinteractionin the first year of
life. Child Development,48, 167-185.
Lehr v. Roberston,463 U.S. 248 (1983).
Matter of Adoption of Male M, 76 A.D.2d 839 (NY App. Div., 1980).
McCarthy,E B. (1988). The confused constitutionalstatus and meaning of parental rights. Georgia Law Review, 22, 975-1033.
Meyer v. Nebraska,262 U.S. 390 (1923).
Michael H. v. Gerald D., 491 U.S. 110 (1989).
Northlandv. Starr,581 N.W.2d 210 (IA S. Ct., 1998).
O'Keefe, J. G. (1991). The need to consider children'srights in biological parent
v. third party custody disputes. Chicago-KentLaw Review, 67, 1077-1105.
Opie, A. (1993). Ideologies of joint custody. Family and Conciliation Courts
Review, 31, 313-326.
Petition of Kirchner,649 N.E.2d 324 (IL S. Ct., 1995).
People ex rel. Dizney v. Witt, 324 N.E.2d 433 (IL App. Ct., 1975).
Pierce v. Society of Sisters, 268 U.S. 510 (1925).
Prince v. Massachusetts,321 U.S. 158 (1944).
Quilloin v. Walcott,434 U.S. 246 (1978).
Richards, J. L. (1992). The naturalparent preference versus third parties: Expanding the definition of parent.Nova Law Review, 16, 733-766.
Rosenstein, D. S., & Horowitz, H. A. (1996). Adolescent attachmentand psychopathology.Journal of Consultingand Clinical Psychology, 64, 244-253.
Ross, L. E. (1995). Reconceptualizingmarital status as a continuum of social
attachment.Journal of Marriage and the Family, 57, 129-140.
Salthe, E. P. (1990). Would abolishing the naturalparentpreference in custody
disputes be in everyone's best interest?Journal of Family Law, 29, 539-548.
Santosky v. Kramer,455 U.S. 745 (1982).
Simons, R. L., Whitbeck,L. B., Beaman, J., & Conger,R. D. (1994). The impact
of mothers' parenting, involvement by nonresidential fathers, and parental
conflict on the adjustmentof adolescent children. Journal of Marriage and
the Family, 56, 356-374.
Smith, S. H. (1978). Psychological parents vs. biological parents:The courts'
response to new directions in child custody dispute resolution. Journal of
Family Law, 17, 545-576.

342

Family Relations
This content downloaded from 122.53.19.230 on Tue, 11 Aug 2015 01:48:01 UTC
All use subject to JSTOR Terms and Conditions

Stanley v. Illinois, 405 U.S. 645 (1972).

Taub,N. (1984). Assessing the impactof Goldstein,Freud,and Solnit'sproposals:
An introductoryoverview. Review of Law and Social Change, 12, 485-494.
Visconti, R. (1988). The legal relationshipof a nonbiological fatherto his child:
A matterof equity. Universityof Detroit School of Law, 66, 97-125.
Wall, J. C., & Amadio, C. (1994). An integrated approach to child custody
evaluation:Utilizing the "best interest"of the child and family systems frameworks. Journal of Divorce and Remarriage,21(3-4), 39-57.

Waters,E., & Noyes, D. M. (1983). Psychological parentingvs. attachmenttheory: The child's best interests and the risks of doing the right things for the
wrong reasons. Review of Law and Social Change, 12, 505-515.
Woodhouse, B. B. (1992). "Who owns the child?": Meyer and Pierce and the
child as property.Williamand Mary Law Review, 33, 995-1122.
Woodhouse, B. B. (1994). "Out of children's needs, children's rights": The
child's voice in defining the family. Brigham Young UniversityJournal of
Public Law, 8, 321-341.

2002, Vol. 51, No. 4

343
This content downloaded from 122.53.19.230 on Tue, 11 Aug 2015 01:48:01 UTC
All use subject to JSTOR Terms and Conditions