Wednesday, September 18, 2013
Rebecca Scharf (UNLV, William S. Boyd School of Law) has published Psychological Parentage, Troxel, and the Best Interests of the Child in the Georgetown Journal of Gender and Law, 13 Geo. J. Gender & L. No. 3, 615 (2012).
Here is the abstract:
This article explores the many ways children are harmed by the law’s failure to ensure that the bonds they have developed with their psychological parents are not broken; it therefore proposes ways that courts can better protect children from the psychological harm of having an individual who has acted as their parent permanently removed from their life. It suggests that what is needed is a framework that allows continued contact by “psychological parents” with whom children have formed attachments without unnecessarily intruding on the fundamental liberty interest of parents at issue in Troxel v. Granville – that is, “the interest of parents in the care, custody, and control of their children.” Such a framework would not only bestow standing on a psychological parent to petition for visitation, but also grant standing for the child himself to petition for visitation with a psychological parent.
In the landmark Troxel v. Granville case, the U.S. Supreme Court struck down a Washington state third party visitation statute allowing any person to petition for visitation at any time as “breathtakingly broad,” but failed to articulate a clear standard under which third parties could petition for visitation, if at all. Without such a provision, however, thousands of children across the country face the frightening possibility that their legal parents may suddenly and permanently remove a psychological parent from their lives, often causing tremendous hardship to the child.
Although other scholarship has focused and critiqued Troxel’s failure to articulate a clear standard for third party visitation, this article focuses much more on the social science and psychological research related to the attachments children form with these “psychological parents” and the risk of significant harm to the child when those attachments are broken, often permanently. Set against this background, it serves to highlight the urgency behind ensuring that courts provide an avenue for both third party psychological parents and the children affected by the potential severing of those attachment bonds, to petition for legal visitation which would allow that bond to continue.
Thus, what is needed is a provision that allows both children and third parties standing to petition for visitation when that third party meets the qualifications to be deemed a psychological parent. Furthermore, once the court has found that there is standing, it would then still make a separate determination as to whether to grant visitation. In doing so, in recognition of the legal parent’s Constitutional rights as a parent, the court would employ a rebuttable presumption that the parent’s wishes are in the best interests of the child. In assessing, however, whether the petitioner has rebutted the presumption, the court would be required to make specific findings of fact as to the psychological harm the child would likely suffer should visitation be denied and all contact with the psychological parent cut off. Only by requiring the court to specifically focus on this specific potential harm, rather than merely engaging in a generalized “best interest of the child” analysis, will the child’s interest in not having the attachment bond with the psychological parent severed be protected.