Faced with an unprecedented number of children born into non-traditional family arrangements, courts across the country are struggling to preserve relationships between same-sex partners and their partners' biological children after those non-marital relationships end. This Comment argues that the Fourteenth Amendment limits the extent to which courts can intrude on the parental rights of a natural or adoptive parent in an attempt to provide remedies for non-parent partners, who are usually legal strangers to the children under applicable statutory schemes. U.S. Supreme Court jurisprudence implicitly recognizes hierarchical tiers of parental rights. Under this framework natural and adoptive parents have superior substantive due process rights to other adults who claim familial relationships with children. Courts also have limited ability to recognize new constitutional rights. Recent decisions of the Supreme Court of Washington and other state courts around the country have recognized de facto parents as parents with rights fully equivalent to those of natural and adoptive parents. Such decisions constitute state action that necessarily erodes existing parents' protected fundamental rights under the U.S. Constitution and must be strictly scrutinized. Courts are therefore restricted in their ability to "promote" de facto parents into full legal parity with natural and adoptive parents.
Adam K. Ake,
Notes and Comments,
Unequal Rights: The Fourteenth Amendment and De Facto Parentage,
81 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol81/iss4/4