Troxel Revisited: A New Approach to Third Party Childcare

Abstract

In 2000 in Troxel v. Granville, four United States Supreme Court justices determined that the “liberty interests of parents in the care, custody, and control of their children” generally foreclose states from compelling requested grandparent childcare over current parental objections. Yet, these four justices recognized that “special factors” might justify judicial interference as long as the contrary contemporary wishes of parents were accorded “at least some special weight.” The plurality, and one concurring justice, reserved the question of whether any “nonparental” visitation, presumedly also encompassing stepparents, siblings and others, must “include a showing of harm or potential harm to the child.” Yet, the concurring justice hinted that at least some nonparental visitation could be based solely on a preexisting “substantial relationship” between a child and a nonparent. Dissenters suggested that some nonparents who childcare may morph into parenthood, as via de facto parentage. So while important, current parental objections to nonparent childcare desires are not always dispositive. Since Troxel, the U.S. Supreme Court has said little about nonparent childcare over current parental objections. It has not addressed special weight, special factors, harm or potential harm, or de facto parenthood. Many state lawmakers since Troxel have extensively refined their third party childcare laws, differing on the “harm or potential harm,” “special factors” and “special weight” that can justify judicial interference with parental “liberty interests.” And since Troxel, there has been an upsurge in significant childcare by grandparents, as well by other nonparents, including by the intimate cohabiting partners of single parents. As a result, there continue to be many third party childcare disputes, as well as disputes over new forms of parentage. New de facto parent statutes and cases since Troxel present a scheme for approaching third party childcare that does not envision a singular approach to judicial assessments of the special weight to be accorded current parent wishes or of the harm or potential harm to children. De facto parentage laws increasingly recognize that a single parent’s current objection to a new second parent carries less “weight” when the single parent strongly fostered a “substantial” parent-like relationship between his or her child and the aspiring second parent. Comparably, third party childcare – without second parent status – could and should also proceed at times with less weight accorded to current parental preferences. This paper first explores the new American state de facto parent laws which often limit current parental decisionmaking about childcare due to an earlier ceding of parental authority. It then examines current third party childcare laws, including those specially addressing stepparents and grandparents. It shows that such laws typically do not comparably limit current parental decisionmaking due to earlier ceding, making third party childcare more difficult due to requirements like “harm or potential harm to the child.” Finally, the paper suggests a new approach to third party childcare founded on a justifiable diminution of parental rights due to earlier ceding by existing parents. This approach better serves children and third parties where there are preexisting “substantial” relationships.