FAMILY DEFINITIONS AND CHILDREN'S RIGHTS IN CUSTODY DECISION MAKING: THE IMPORTANCE OF A CHANGING LITIGANT CONTEXT

Abstract

Recent scholarship has advocated two distinct approaches to promoting the preservation of children's attachment relationships during custody disputes between their biological and nonbiological parents. Some scholars argue that legal recognition of expansive definitions of the family is the key to protecting children's attachments, while others argue that such protection is contingent upon legal recognition of children's rights. This research examines the efficacy of these competing arguments through an analysis of 75 cases decided in 21 states and the District of Columbia between 2004 and 2005. Findings suggest that judicial attention to definitions of the family is generally confined to cases involving specific types of litigants; namely, former homosexual partners, couples who utilized fertility technologies, former stepparents, and presumptive fathers. In these instances, attention to broad conceptions of the family is associated with the maintenance of children's attachment relationships. Beyond this particular context, however, judges focus almost exclusively on balancing children's interests and rights against those of their biological parents. These findings suggest that both children's rights and family definitions influence judicial decisions, but their impact is context specific. For those scholars advocating legal change, this is an important insight because it shifts the debate from an “either/or” focus to one that recognizes the importance of the litigant context in custody decision making.