Ronda and her newborn daughter, Brittanae, lived with Ronetta, Ronda’s mother and Brittanae’s grandmother, until Ronda died when Brittanae was nineteen months old.
After her mother’s death, Brittanae remained with her grandmother.
Almost a decade later, Brittanae’s father, Adrian, sought custody of her.
Adrian testified that during that decade, he had contacted Brittanae by phone or in person at least monthly.
At the time of trial, Brittanae was thirteen.
She testified that she lived with Ronetta, whom she called “mom” her entire life, and wanted to remain with her.
Indeed, she testified that “it would be extremely stressful or unbearable to move in with Adrian.”
The trial court found that Ronetta stood in loco parentis—“a person who has fully put himself or herself in the situation of a lawful parent by assuming all the obligations incident to the parental relationship and who actually discharges those obligations.”
Having reached that conclusion, the Nebraska courts further determined that “Ronetta’s continued custody is clearly in Brittanae’s best interests.”
Karina had a child with Jose.
When the child was eighteen months old, Karina began living with Gabriel.
Around that time, Jose moved halfway across the country.
After moving, Jose was “largely absent” from the child’s life.
“[A]lthough he engaged in periodic phone calls every three to four months,” he visited the child only once during the four years from 2012 to 2016.
During this same period, Karina and Gabriel lived together as a family. Gabriel was the “only father [the child] knew”; the child considered Gabriel her father and called him “dad.”
Karina and Gabriel became engaged, but, before they could marry, Karina was murdered.
The child was five at the time.
Both Gabriel and Jose sought custody.
After the trial court began transitioning custody to Jose, the child’s “grades in school fell, and her mental health deteriorated.”
Eventually, the Washington courts recognized Gabriel as the child’s de facto parent and awarded him primary custody.
When L.M. was born, his biological mother, who had a substance use disorder, asked another woman, M.W., to “take and raise” him.
The biological mother “had no contact with M.W. or [L.M.]” for several years.
M.W. “was his sole caretaker, and provided for all his needs.”
M.W. “enrolled [L.M.] in school and took him to medical appointments, representing herself as his mother.”
Teachers and the parents of other children “all knew M.W. as [L.M.’s] mother, as did the members of M.W.’s church.”
When he was six, L.M. found out that M.W. was not his biological mother. This fact came to light when the state initiated abuse and neglect proceedings against his biological mother based in part on “the fact that [she] had not cared for the minor since his birth nor was she able to adequately do so.”
The California courts recognized M.W. as L.M.’s presumed parent because she “held the minor out as her own.”
As a result, L.M. was able to remain living with the person who had parented him his entire life, rather than being placed in the state’s custody.
In the first case, Nebraska’s functional parent doctrine—in loco parentis—allowed the court to recognize the parent–child bond that existed between Ronetta and Brittanae, despite their lack of a biological or adoptive parent–child relationship.
In the absence of this doctrine, Brittanae likely would have been removed from the only home she had ever known and placed with a man who had “not assume[d] the obligations incident to being a parent,” even though he “knew that he was Brittanae’s father.”
The other route for protection—the state’s grandparent visitation statute—authorizes only an award of visitation, not custody.
In the second case, Gabriel amended his original complaint to include a claim under Washington’s newly enacted de facto parent statute.
Because, under Washington law, a de facto parent “stands in legal parity with an otherwise legal parent,”
the custody dispute turned on the child’s best interest. Accordingly, the court ruled based on the “strength, nature, and stability” of the parent–child relationship that existed in fact.
In the third case, California’s functional parent doctrine—a presumption of parentage based on “receiv[ing] the child into [one’s] home” and “hold[ing] the child out as [one’s] own”—allowed the court to avoid “tear[ing] from the minor the only parent he has ever known.”
In fact, if M.W.’s parentage petition had been denied, the state likely would have taken custody of L.M., given evidence demonstrating that the biological mother was unable to care for the child.
Today, approximately two-thirds of the states have a functional parent doctrine.
Different jurisdictions capture functional parenthood through different doctrines. These doctrines include ones scholars have long addressed—such as de facto parentage, psychological parenthood, in loco parentis, and the “holding out” presumption of parentage.
They also include doctrines that have received relatively little attention—such as de facto custodian and equitable caregiver statutes and a presumption based on “notoriously” recognizing parentage.
These doctrines arise from different sources of authority across jurisdictions—common law, equitable, and statutory.
In some jurisdictions, like Nebraska, the doctrines are judicial creations; in others, like California, they are codified.
And some states, like Washington, have multiple doctrines.
These doctrines yield different rights and obligations across jurisdictions, with some granting full legal parentage and others extending only limited parental rights.
In recent years, functional parent doctrines—at least the more familiar types—have garnered significant attention from scholars, judges, lawmakers, advocates, and the media.
Yet, cases like the ones from Nebraska, Washington, and California discussed above are rarely part of the conversation. Instead, commentary tends to make assumptions about how the doctrines operate without a solid empirical basis.
For all that is written about functional parent doctrines, relatively little is known about how these doctrines work in practice. In what kinds of cases do functional parent claims arise? Who are functional parents in these cases, and what is their relationship to the legal parents and to the child? What role do the functional parents serve in the child’s life? Answering these questions and others can provide important insights with which to evaluate, design, and refine functional parent doctrines.
This Article documents how functional parent doctrines operate in practice, examining when, how, and to whom they apply. It does so by providing an empirical account of functional parent case law. We have collected and coded all electronically available judicial decisions from 1980 to 2021 in every U.S. jurisdiction that has what we categorize as a functional parent doctrine.
By this we mean a doctrine that extends parental rights to an individual based on the conduct of forming a parental relationship with the child and parenting the child.
Our data set includes doctrines in thirty-two jurisdictions. Functional parent doctrines now exist in thirty-four jurisdictions, but the statutes in Georgia and Connecticut took effect in 2019 and 2022, respectively, and yielded no electronically available cases during the period we studied.
In total, our data set includes 669 decisions.
It includes cases decided under judicially created doctrines, like in loco parentis and psychological parenthood, as well as codified provisions, such as the “holding out” presumption and de facto custodian.
It includes doctrines that treat functional parents as legal parents, as well as those that grant functional parents only some parental rights, such as standing to seek custody.
Some jurisdictions have more than one relevant doctrine.
Where this is the case, all of the relevant doctrines are included in the data set.
Although, like all empirical studies, our study has limitations, it nonetheless provides a clear-eyed and thorough assessment of functional parent doctrines and how they operate in litigation. In the overwhelming majority of cases in the data set, the functional parent appears to have been the child’s primary caregiver.
In many cases in our study, the functional parent is the only person who has consistently cared for the child.
Seeking to avoid disruption of this parent–child relationship, courts in our study routinely apply functional parent doctrines to protect children’s relationships with the person who is in fact parenting them.
The account this Article offers looks different than the picture presented in contemporary commentary.
Scholars and advocates typically assume a paradigmatic claimant in functional parenthood cases: the nonbiological parent in a same-sex couple. On this view, the doctrines’ primary beneficiaries are LGBTQ parents who had been excluded from protections under discriminatory parentage rules.
Commentators also typically imagine a paradigmatic context—post-dissolution custody disputes—in which functional parent claims arise.
In this vision, the doctrines primarily arise when a former intimate partner who had cared for the child alongside the legal parent seeks custody or visitation over the legal parent’s objection.
It is assumed that, but for the functional parent’s claim, the state would otherwise not be involved in the lives of the legal parent or child.
Because bitter custody disputes are not good for children, scholars and advocates worry that functional parent doctrines will create or exacerbate conflict and instability in children’s lives.
These assumptions about who functional parent claimants are, how their claims arise, and what effects the claims have on children support normative arguments against using function as a basis for assigning parental rights and responsibilities. Based on these assumptions, critics claim that the doctrines are unnecessary, intrusive, unwieldy, unpredictable, and wrongheaded.
Although framed as normative objections, these diverse criticisms rest on empirical claims or assumptions about what the doctrines do or what they will do if adopted.
At times, empirical claims about functional parent doctrines are made without citation to significant evidentiary support—as though the doctrines are novel and thus that we do not, and could not, know how they apply.
Even when sources are cited, commentators tend to rely on a handful of cases without providing grounds for concluding that those cases are representative.
Ultimately, the burgeoning debate over functional parent doctrines operates largely at the level of speculation or unsupported generalization.
This need not be the case. Functional parent doctrines have long existed, offering ample evidence to collect and examine.
This Article develops a more thorough, detailed, and accurate account of functional parent doctrines in action. It also provides data with which to assess the empirical assumptions that pervade accounts of functional parent doctrines. Rather than LGBTQ parents representing the dominant class of claimants, relatives constitute the largest share of functional parents in the data set. Rather than post-dissolution custody disputes overwhelmingly predominating, the data set includes a range of scenarios that give rise to functional parent claims, including cases involving parental death and child welfare intervention. Rather than finding that courts use functional parent doctrines in ways that disrupt and unsettle children’s lives, our study finds that courts typically apply the doctrines in ways that secure children’s relationships with the individuals who are in fact parenting them. In a large swath of cases in the data set, protection of the functional parent–child relationship does not fundamentally alter the existing dynamic between the biological or legal parent and the child.
Instead, courts in our study routinely apply the doctrine in ways that preserve the child’s existing living arrangement with the person who is serving as their primary caregiver.
In short, evidence from our study does not lend significant support to the assumptions on which skepticism of functional parent doctrines often rests.
Not only do our data not support the empirical assumptions that undergird normative objections to functional parent doctrines, but our data lend support to arguments in favor of functional parent doctrines on child-centered grounds.
Our study shows how the doctrines are applied by courts to preserve relationships between children and their primary caregivers.
In doing so, judicial application of the doctrines routinely makes children’s lives more stable and secure, not less.
Ultimately, this Article’s examination of how functional parent doctrines operate on the ground can reorient the normative debate over these doctrines in both academic and lawmaking domains.
This Article proceeds in five Parts. Part I describes existing functional parent doctrines, offering a more comprehensive and accurate account than currently exists. This Part shows that functional parent doctrines are more widespread than commonly understood and that they are not a red-state or a blue-state phenomenon. Instead, they appear in two-thirds of U.S. jurisdictions—jurisdictions that are politically and geographically diverse. Part II describes the empirical study, explains key limitations, and reports some general findings. Because the data set includes only electronically available decisions, we do not make claims about the universe of litigated functional parent cases or about the role of functional parent doctrines in disputes that never reach court. Instead, we report findings regarding the available decisions. Part III focuses on specific aspects of the data, examining the identities of functional parents, the roles that functional parents play in children’s lives, the contexts in which functional parent claims arise, and how courts adjudicate functional parent claims. Part IV draws on our empirical study to evaluate some of the concerns that scholars, judges, and advocates have raised about functional parent claims. This Part shows that our data do not offer significant support for many of these concerns. Finally, Part V explains how our empirical analysis lends support to functional parent doctrines on child-centered grounds.
The insights offered by this Article come at a particularly critical moment. Families that include nonbiological, nonadoptive, and nonmarital parent–child relationships have long been a feature of American households.
Contemporary circumstances, however, amplify the significance of these relationships. A number of demographic trends—including increasing rates of nonmarital child-rearing and cohabitation—have resulted in greater numbers of children being raised by individuals other than their biological parents.
In addition, a range of different forces—from the opioid epidemic to the COVID-19 pandemic—have resulted in relatives, including grandparents, taking on caregiving roles at increasing rates.
In light of these developments, understanding how functional parent doctrines operate in practice is especially pressing.