State Lawmaking on Federal Constitutional Childcare Parents: More Principled Allocations of Powers and More Rational Distinctions
Parness, Jeffrey A.
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Unlike other federal constitutional rightsholders, a parent with the federal constitutional right to exercise “care, custody, and control” over a child is defined by state lawmakers. While federal constitutional childcare parents may be defined by state constitutional law precedents, they typically are not. The balance of General Assembly and judicial authority over childcare parentage definitions varies interstate. As well, the definitions of childcare parentage differ intrastate depending upon how parentage is established. At times, childcare parentage is defined in a single state by biological ties (real or imagined), contracts, or earlier histories of significant parental-like acts. When determining federal constitutional childcare parentage, state courts too frequently rule without considering key principles. More principled opinions are needed. Further, when applying rule statutes defining childcare parents, state courts too frequently rule without recognizing equality issues. These distinctions can involve wed and unwed couples; same sex and opposite sex couples; single individuals and coupled individuals; and those who do or do not contribute genetic material leading to birth. This paper reviews the deference on federal constitutional childcare parentage to state lawmakers; how this deference has not yielded many state constitutional law precedents; the varied state statutory and common law approaches to defining federal constitutional childcare parents; certain key principles which should guide state legislatures and courts in determining who within a state should define childcare parents; and, how equality demands sometimes require courts to invalidate statutory or common law definitions of childcare parentage.
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