‘New Parents’ and the Best Interests Principle

Abstract

Parenthood law in the U.S. has traditionally been based on gestation, marital status, and genetics. The best interests of the child principle, which is pervasive in the law of parental rights and responsibilities, has conventionally not played any role in parentage law. In contrast, foreign law, especially, international human rights law, stresses on the interests of the child as a universal standard in all decisions concerning children. This conventional view of American law is no longer true. With the rise of ‘new parents’ in non-traditional families, the American law of parenthood has been undergoing an expansion to include intentional and functional principles to treat non-traditional families equally. This new law of parenthood has been accompanied by the creeping application of the best interests principle to a new range of situations that are not merely disputes over custody and visitation but raise the first order question of parenthood. This application of the best interests principle is surprising given that it has extensively been critiqued for being discretionary and indeterminate in custody law. This Article argues that the creeping application of the best interests principle in parentage law is a development that should be avoided. First, the Article suggests that the best interests principle rarely does independent work in parentage law. Second, and more importantly, as a conceptual matter, it is incompatible with parentage determinations. To understand the work that the best interests principle is beginning to do, the Article analyzes emerging case law on de facto parenthood in the United States. These developments are brought in conversation with the more pervasive use of best interests reasoning in the jurisprudence of the European Court of Human Rights. Based on a comparative case law analysis, the Article shows that the best interests principle is used inconsistently, does no independent work, and obscures what is truly at stake in parenthood determinations. While existing literature has extensively critiqued the best interests principle for being discretionary, this Article makes four novel normative arguments against the use of best interests in parentage law, focusing on the permanency and relationality of parenthood and the temporality and the dignitary harms of best interests. Ultimately, the Article endorses equality-based approaches to parenthood, which center principles of intent and function, compared to the more discretionary best interests standard.