This article considers the role of the partners’ relationship to each other in the context of the new California parentage cases. These rulings, which expand recognition of functional parents without marriage, domestic partnership registration, biology or adoption, attempt to ground the emerging definitions of parentage in the relationship to the child. The article, argues, however, that these rulings, because of their failure to consider the position of the initial legal parent, are on perilously thin constitutional ice. The ALI Principles of Family Dissolution, which also expand recognition of functional parenthood, tie that recognition to a combination of parental consent and acknowledgment of the responsibilities that come from the establishment of family bonds forged over time. The new California line of cases could arguably pass constitutional muster by acknowledging the role of the initial legal parent in engineering the relationship. To do so, however, in the range of circumstances arising in the lower courts requires revisiting adult understandings about the nature of parenting. Under what circumstances does shared parenting contemplate shared parental status? Does a parent who welcomes an intimate partner into her household have an obligation to the child to encourage the continuation of the bonds that are established? Do formal institutions such as marriage and adoption continue to matter and, if so, what legal role do they play? The article concludes that the failure to address the meaning of partnership weakens the practical and jurisprudential import of the new decisions. The solution will require making explicit judicial assumptions about the nature of consent to the creation of family bonds.
This article, first, reviews the new California Supreme Court parentage cases, second, examines the emerging intermediate appellate decisions testing the limits of the new jurisprudence, and third, sets forth the constitutional parameters for the determination of parenthood. Fourth, the article compares the California requirements with the ALI’s provision for parenthood by estoppel, and concludes that some level of parental consent to the creation of new bonds is constitutionally compelled. Finally, the article considers some of the unanswered issues underlying the emerging cases, including the degree to which the law should distinguish between third parents who assume a parental role at the child’s birth, and those who come into the lives of older children.