Mom and Mom? Custody Doctrine in a Post-Nuclear America
As the courtroom becomes more heated, a child sits silently, heart pounding, as the law weighs arguments and evidence, deciding not just who the child will live with but shaping the course of their life, all in the name of their welfare. Going back 80 years, American law and policy reflected what scholars call the Cold War family model: statutes, court rulings, and policies centered on a male breadwinner and female caregiver household. [1] Even up until the 1940s and 1950s, legal frameworks centered around these traditional gender role norms, and child custody and family law were thus reinforced around that presumed material care within marriage and paternal authority after divorce. [2] After the Second World War, the social atmosphere in the United States had changed substantially, as returning soldiers, a booming economy, war production, and an emerging military-industrial complex created opportunities not only in the workforce but also in family circles. [3] New political movements, changes in historical circumstances, and an emphasis on an inclusive view of living unveiled a plethora of previously uncommon family combinations and broader family dynamics. As a result, childbearing and child custody became much more complex, forcing legal frameworks to reconcile unexpected separations and re-evaluate their accuracy for these new parental categories.
As American family structures continue to evolve beyond the nuclear model, the need to rewire existing custody doctrines remains ever so preeminent, with current legal frameworks unequipped to handle broadening family dynamics. Existing legislation for child custody is still largely rooted in post-war nuclear family norms, for example, families that embody biological parenthood and two-parent households, resulting in inadequate protections for children, inconsistent judicial outcomes, and a need for reform to better reflect personalized households
In the sphere of legality, the guiding principle in every custody case is the best interests of the child standard. [4] This principle aims to ensure government policies and judicial decisions provide the necessary protections that fulfill a child’s well-being, which could include anything from safety and identity to general family reconciliation. This standard is often used to determine which parent or institution is best suited to provide for the child’s well-being. This decision becomes especially crucial in court cases involving multiple parental claims. In these cases, judges may, for example, focus more on emotional stability, financial security, and the child’s relationship with each claimant. With cases involving multiple parental claims, judges look beyond formal definitions of parenthood and analyze which claimant has provided adequate emotional support and care for the child. These concerns lead to more critical questions, such as what truly constitutes a “family” and at what point do non-biological persons gain parental rights.
Children can be raised by extended family members or by nannies, non-biological “parents,” so to speak. As family dynamics shift, so must the definition of what constitutes a family. In Moore v. City of East Cleveland, a zoning ordinance’s strict definition of “family” was ruled unconstitutional since it prevented Moore from living with his grandsons because he was not considered an immediate family member, a direct violation of his due process and equal protection rights under the Fourteenth Amendment. [5] The Fourteenth Amendment, ratified in 1868, ensures that state and local governments treat everyone equally under the law. It protects any person from being denied their fundamental rights, such as life, liberty, or property, without due process of law. [6] The overruling thus expanded the definition of family and illustrated the idea that legal definitions of family are not fixed and that constitutional protections can extend beyond the nuclear model. [7]
Broadening the legal definition of family initiated the beginning of changes within America’s legal framework surrounding family demographics and child welfare. Many court cases that followed Moore v. City of East Cleveland further expanded on parenthood and parental claims. In Elisa B. v. Superior Court, Elisa B. and Emily B., a lesbian couple, decided to have children via artificial insemination. [8] However, when Elisa B. stopped supporting Emily B. financially, the California Supreme Court established her as a presumed parent under the Uniform Parentage Act due to her active participation in the childbearing process. This case emphasized the role of intent in parenthood-related situations and how judicial decisions began to prioritize the child’s welfare over rigid legal definitions. Here, “intent” refers to an apparent willingness to take responsibility for being a parent, not just biologically, but also financially and emotionally. Elisa B. v. Superior Court illustrated that parenthood extends beyond a simple genetic connection; it is about the ongoing commitment a person provides to a child. [9]
Building on the idea that parenthood goes beyond simple biology, courts have also confronted cases involving multiple parents. In the case of In re M.C., a child was born to a biological mother and her wife, with the biological father as the presumed parent. [10] This introduced a more complex family structure, raising the question of whether there is truly a legal limit to the number of parents a child can have. The California Court of Appeals ruled that a child cannot have more than two legal parents under state law (at that time). This decision not only illustrates the limitations the judicial process historically had, but it also shows how it has long developed into a more inclusive legal framework to accommodate changing societal expectations.
Similarly, in Frazier v. Goudschaal, the court focused on how individuals acted as parents rather than relying solely on biological connections when granting legal recognition. In Frazier v. Goudschaal, a same-sex couple agreed to a coparenting agreement for the two children they had via artificial insemination. [11] This court case recognizes parenthood based on both intent and coparenting agreements rather than simply due to obligatory means. It also affirmatively protects non-biological, non-married parents by acknowledging those persons who have acted as parents, not just biologically related parents.
In Pavan v. Smith, two same-sex married couples in Arkansas were denied the ability to list both spouses on their children’s birth certificates. [12] The Arkansas Department of Health stated that, under state law, only biological parents are allowed to be listed. The U.S. Supreme Court, in a per curiam opinion, held that the selective process of listing only certain types of parents on certificates violated the Equal Protection Clause of the Fourteenth Amendment. [13] This ruling also ties directly back to the best interests of the child standard: by taking into account all parents involved in a child’s life, the Court reinforced the principle of prioritizing the child’s welfare over a formal and rigid legal definition of parenthood. This decision also held consistency with the judicial precedent in Obergefell v. Hodges (2015). [14] Just as Obergefell recognized that legal protections should realistically reflect the realities of families, Pavan extended this principle to parenthood and child custody, ensuring non-biological parents receive legal recognition based on their level of engagement and care for the child. [15] The Supreme Court highlighted the importance of same-sex parents and the idea that family structures must receive equal treatment as biological and heterosexual married parents.
Despite all of these landmark court cases and developments within the American legal system, gaps remain in how legal frameworks protect children and families outside traditional nuclear norms. A just court system would prioritize the child’s welfare over rigid legal definitions of parenthood, incorporating intent-based recognition that accounts for non-biological factors such as emotional, financial, and caregiving commitments. By evolving to adapt to changing family dynamics, the American legal system can aim to fully reflect the realities of contemporary family life while ensuring that protections are provided for all children in need of additional care. A truly just legal system must not only acknowledge the shifts in societal parenting and child custody matters but also work proactively to protect the rights and dignity of all families and the people it serves.
Sources
CSP Global. 2020. “The Evolution of American Family Structure.” CSP Online. July 10, 2020. https://online.csp.edu/resources/article/the-evolution-of-american-family-structure/.
Ibid.
The National WWII Museum. 2019. “Research Starters: Women in World War II.” The National WWII Museum | New Orleans. The National WWII Museum. 2019. https://www.nationalww2museum.org/students-teachers/student-resources/research-starters/research-starters-women-world-war-ii.
Cortese, Michele. “What Courts Should Consider When Determining Children’s Best Interests.” What Courts Should Consider When Determining Children’s Best Interests, September 1, 2015, www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-34/september-2015/what-courts-should-consider-when-determining-childrens-best-inte/.
Moore v. City of East Cleveland, 431 U.S. 494 (1977); U.S. Const. amend. XIV.
United States Constitution, amend. XIV, § 1.
Moore.
Elisa B. v. Superior Court, 37 Cal. 4th 108 (2005).
Ibid.
In re M.C. 195 Cal. App. 4th 197 (2011).
Frazier v. Goudschaal. 296 P.3d 1037 (Kan. 2013).
Pavan v. Smith. 582 U.S. 563 (2017).
United States Constitution, amend. XIV, § 1.
Obergefell v. Hodges, 576 U.S. 644 (2015).
Pavan.