De Facto Parents, Legal Parents, and Inchoate Rights

Authors

Solangel MaldonadoFollow

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Abstract

Professor Douglas NeJaime’s Essay Parents in Fact¹ com- mends the Restatement of Children and the Law’s² embrace of the de facto parent doctrine.³ He is somewhat critical, however, of the Restatement’s reference to individuals seeking recognition as de facto parents as “third parties” and its reluctance to recognize de facto parents as legal parents.⁴ He is also skeptical of the Restatement’s requirement that an individual seeking recognition as a de facto parent first show that a legal parent consented to and fostered the individual’s creation of a parent-child relationship with the child.⁵ NeJaime’s observations provide an opportunity to clarify the scope and constraints of a restatement—which requires “clear formulations of common law” rules and must “reflect the law as it presently stands”⁶ but also provides space, albeit limited, for expression of “the relative desirability of competing rules.”⁷ NeJaime’s reflections also allow us to illustrate how silence—not taking a position—on issues that courts have yet to decide furthers the Restatement’s legitimacy while minimizing the risk that it will be “a roadblock to change”⁸ as the law evolves.

Recommended Citation

Maldonado, Solangel (2024) "De Facto Parents, Legal Parents, and Inchoate Rights," University of Chicago Law Review: Vol. 91: Iss. 2, Article 10.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol91/iss2/10