Document Type


Publication Date

January 2017


Part I of this article introduces the tension between constitutionally protected parental autonomy rights and functional parent doctrine by examining the constitutional rights of parents. This examination demonstrates how the marital status of a parent has a substantial impact on the strength of that parent's constitutional rights. In cases in which there are two unmarried (never married or divorced) parents, neither parent has particularly robust constitutionally protected autonomy rights because both parents have competing constitutional rights that must be balanced against each other. Each parent has the right to invoke a court's jurisdiction in vindication of his or her own parental rights. Functional parent doctrine exploits this weakness in an unmarried parent's constitutional rights even though, for many of the extant legal parents in functional parent cases, there is no other legal parent.Part II of this article examines same-sex functional parent cases to demonstrate how courts weigh the importance of intent to share parental rights against the functional sharing of parental practices. When intent to share legal parentage is clear, most courts have little trouble granting parental rights based on function. When intent to co-parent is ambiguous and hard to discern, courts often – though not always – reject a functional approach. Those courts that have expressed a willingness to embrace a functional approach without clear indication of intent to co-parent do so because the judges find that the parties functioned as a family. In letting function trump or supplant intent, courts pay short shrift to the constitutional parental autonomy rights of the extant parent and discount an individual's right to create a legal family that does not mimic the traditional heteronormative ideal. Some cases suggest that allegiance to the traditional notion of family is so strong that only if someone like Alice, an extant parent, clearly and expressly opts out of co-parentage will courts allow her to parent alone.Part IIIA of this article suggests that an opt-in system makes more sense. A recent proposal by Professor Leslie Harris to make Voluntary Acknowledgements of Parentage available to unmarried same-sex couples just as they are available to unmarried opposite couples would constitute such an opt-in system. A regime like this would establish a simple, intent-based registration system in which same-sex couples could mutually opt in to co-parentage. If parents want to be treated by the law as co-parents, they have to say so by executing a formal, though easy and inexpensive, document proclaiming their intent to co-parent. Opting-in puts the power and the burden to define family in the hands of family members themselves, not judges.Part IIIB explores the dangers attendant upon not adopting an intent-based registration system. Cases to date make clear that when using functional approaches to parenthood-when deciding whether a person has quacked like a parent-judges import gendered, dyadic and often genetic understandings of what family is and what families do. Because this approach determines what a parent is by looking at what a parent does, it inevitably relies on what parents have traditionally done. This results in judicial foci on stereotyped roles, binary romantic relationships and genetic contribution because these variables have been at the core of what families were and what families did. Judicial reinforcement of traditional understandings of parenthood make it more difficult for everyone to envision the kinds of responsible parenting that might be possible in a world in which reproduction need not and often is not sexual, marriage need not and often does not accompany parenting, and family members enjoy the security of knowing to whom they are legally bound.