The new "extended family"--"De Facto" parenthood and standing under chapter 2

Can parental rights-and, by implication, children-be acquired by adverse possession? More concretely, as now proposed by the American

Given the importance of the family as the repository of many of our deepest hopes for happiness-and what Justice Blackmun called the "vital interest in preventing the irretrievable destruction of ... family life"1-it may not seem to be a cause for celebration that the American Law Institute has found it necessary to promulgate the comprehensive Principles of the Law of Family Dissolution (the "Principles"), which, among other proposals, offer strong protection for the rights of "de facto" parents.2 But the Principles are a welcome document. In the face of growing chaos in judicial and legislative approaches to family problems, especially those involving allocation of responsibility for children,3 it offers an opportunity for clarity

and synthesis. And in its bold attempt to reformulate-really to revolutionize-the law of child custody, it evidences a deep commitment to the protection of children in circumstances where traditional family structures are absent or in disarray.

The custodial principles contained in the ALI's new document are, of course, not the only radical proposals it encompasses.4 But chapter 2 of the new document-"Principles Governing the Allocation of Custodial and Decisionmaking Responsibility for Children"5-is arguably the most crucial component of a new vision of the family offered by the Principles. For it is in this section that the drafters outline who will have power over the lives of children, and propose an important new category of nonbiological but legal par

ent-the "de facto parent." Outside intact biological families-and occasionally even within them-this new legal term of art promises to have sweeping importance. De facto parenthood creates a new kind of "extended family" for children, one in which three, four, or more adults may have status as one type or another of rights-holding parent. As such, the concept deserves careful scrutiny-at first, as here, on its own terms and later in the full context of the contentious public debate over the extent to which traditional family structures must yield to new policy priorities and empirical understandings.

This article will urge rejection of the de facto parenthood provisions of chapter 2, while acknowledging that such informal caretaking relationships can acquire serious, even fundamental importance for a child.6 Instead, it will examine the relationship between that category and what the drafters identify as the two central priorities of their enterprise: (1) "to provide determinate and predictable outcomes [in custody cases] that benefit children in the vast majority of cases," and thus prevent "unnecessary litigation, the hiring of expensive experts, and strategic or manipulative behavior by parents,"7 all while (2) serving the "individualized... interests of individual children."8 Part I will briefly describe the structure of chapter 2's approach to allocations of "custodial responsibility" over children. Part II will outline the importance, recognized by the drafters, of limitations on standing in disputes over children and examine the structure of section 2.04, which essentially limits standing to persons fitting into one of the defined categories of "parent," including "de facto parent," in section 2.03. Part III will examine section 2.03's definition of "de facto parent" and argue that its indeterminacy creates an enormous potential for manipulative litigation, unfair bargaining, and interference with parent-child relationships-especially in con

junction with the principles of chapter 6 9 regarding domestic partners. Part IV will briefly contrast the broad new custodial privileges chapter 2 proposes granting to "de facto" parents with the sharp curtailment it would impose on the rights of the biological extended family, especially grandparents-despite what seem to be that latter group's smaller (or even nonexistent) incentives to engage in strategic use of child custody litigation. Finally, Part V will question the reasonableness of the exclusion in section 2.04 of standing for children themselves in the process of determining which relationships will benefit them as they grow toward their own autonomy, and suggest that giving children standing in custody disputes to seek continued access to de facto parents and other adults would be a far less dangerous approach to preserving their extended "family" than that contained in chapter 2.

I. THE STRUCTURE OF CHAPTER 2 Is CUSTODY RULES

Chapter 2 seeks to establish "[p]rinciples governing the allocation of custodial and decisionmaking responsibility for a minor child" in all circumstances "when the [child's] parents do not live together," and in some when they do.10 Foremost among those principles is the requirement that courts should honor parental agreements concerning custody,11 which fits together with the general preference in the Principles for encouraging settlement of disputes through private agreement.12 Under section 2.07, a court is permitted to reject a custody agreement only if it is "not knowing or voluntary" or "would be harmful to the child"-and then the court is required to give the parents another opportunity to negotiate an agreement.13 There is no requirement, moreover, that parents produce evidence of voluntary, good faith negotiation or of the agree

ment's benefit for their child except where the court has somehow received "credible information" of domestic or child abuse.14 As the drafters admit, section 2.07 "requires greater deference" to custody agreements than does the prevailing law of most jurisdictions.15

Where parents fail to agree, chapter 2 authorizes broad judicial involvement to establish and enforce a "parenting plan" for each child-that is, "an individualized and customized order" that specifies "in some detail" the times when each parent will have responsibility for the child and the allocation between the parents of authority to make decisions on such matters as health care and education.16 In a sharp break with current legal terminology, chapter 2 abandons all distinctions between "custody" and "visitation," merging them into the term "custodial responsibility,"17 and so makes litigation over the parenting plan the sole forum for any disputes over claims to continuing contact with a child.18

To achieve reasonably predictable results in disputes over custodial allocations in the parenting plan, section 2.09 declares that "the court should be required to allocate custodial responsibility so that

the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation"19-called the "approximation standard" by Elizabeth Scott, who first proposed it in 1992.20The approximation standard, according to a comment to section 2.09, "assumes that the division of past caretaking functions correlates well with other factors associated with the child's best interests, such as the quality of each parent's emotional attachment to the child and the parents' respective parenting abilities," and that such functions provide a "more objective" guide to judicial decision.21 Nevertheless, as "caretaking functions" are defined in chapter 2, they do not always easily admit of concrete determination. They include not merely functions, such as feeding and bathing, that "meet the daily physical needs of the child," but also less tangible functions such as "direction of the child's various developmental needs," "discipline, instruction in manners," and "the development and maintenance of appropriate interpersonal relationships with peers, siblings, and adults."22 As Professor Scott conceded while introducing the "approximation" concept, "[t]ranslating evidence about past parental care and responsibility into a plan for future custody will often be a formidable task that is prone to error."23

Moreover, this "objective" standard is nevertheless subject to a

series of exceptions that vary widely in their potential to affect predictable decision making-ranging on the one hand from recognition of written post-separation agreements and deference to "the firm and reasonable preferences of a child who has reached a [legally specified] age" to, on the other, avoidance of "extremely impractical" allocations or adjustments in custodial allocations to reflect "a gross disparity in the quality of the emotional attachment between each parent and the child."24 Finally, and perhaps most dangerous of all to the quest for objectivity, the parenting plan must ultimately "permit the child to have a relationship with each parent."25 What, for example, does "relationship" mean? Is it to be the subject of (often conflicting) expert testimony?

II. STANDING UNDER CHAPTER 2

Even the best standards for allocating custody, though, can be manipulated in litigation, and the last decade has brought increasing recognition of the role that standing plays in protecting crucial family interests.26 Liberal standing rules encourage, or at least tolerate,

more frequent litigation, and as Catherine Bostock has explained, custodial litigation may directly harm children by exposing them to acrimony, stress, and conflicts of loyalty-as well as the danger of biased or subjective decision making under vague standards.27 For the custodial parent forced to defend an action for custody, such a suit means heavy distraction and significant costs.28 Thus, the custodial mother in Troxel v. Granville29 had to hire two expert witnesses in defending against the grandparents' visitation petition,30 and ultimately had to file an affidavit of "financial need" to seek reimbursement of her attorney's fees.31 Commentators have long recognized the ugly possibility that, in the face of such costs, a parent might feel constrained to make concessions in the division of marital property or child support in order to avoid the risk of losing custody rights.32

Chapter 2 attempts to address these concerns in section 2.04, which establishes the boundaries of standing to initiate and to intervene in actions over custodial responsibility. Standing to initiate an action is limited to a "legal parent," a "parent by estoppel," a "de facto parent," a "biological parent" who is no longer a "legal parent" but who has reserved some parental rights under an agreement with a "legal parent," and any person previously given responsibility for the child under an existing court-approved parenting plan.33 As will be explained in the next section,34 all of these labels for "parent" are terms of art carefully defined by section 2.03. Standing to intervene in an already-initiated action is limited to those various types of "parents," and to other individuals or public agencies, "[i]n exceptional cases" if the court determines the intervention is "likely to serve the child's best interests."35

As will shortly appear, this approach to standing represents at once a dramatic expansion and a sharp contraction of existing standing rights in child custody cases. Stepparents, live-in sexual partners, and even roommates may be able plausibly to advance claims to "de facto" parenthood that will permit them to initiate custody litigation with a natural parent. Moreover, because of the presumption that custodial allocations will substantially mirror prior caretaking behavior, these putative "de facto" parents will have standing to pursue not just classic visitation rights, but virtually coequal physical custody. On the other hand, grandparents, who have won the right in virtually every state to petition for visitation at least under some circumstances,36 would be precluded from initiating such a proceeding in court and would be able to intervene in ongoing custody proceedings only in "exceptional cases." That these procedural changes are bold, even momentous, is hardly in doubt. Whether they are consistent with the central purposes of standing requirements-protection both of children and of legitimate interests in family autonomy-is an entirely different matter.

III. STANDING AND THE NEW EXTENDED FAMILY

One of the most appealing features of chapter 2 is that it recognizes, both in principle and in concrete application, the quite incontrovertible fact of modern life that "children are often cared for by adults who play very significant roles without replacing their legal parents."37 Just so the Supreme Court plurality in Troxel v. Granville described the "changing realities of the American family" in which "grandparents and other relatives undertake duties of a parental nature" and state laws attempt to "ensure the welfare of the children [in such households] ... by protecting the relationships those children form with such third parties."38 In that case, a clear majority of the Court seemed to suggest that states may constitutionally grant legal protection to such relationships-through, for example, carefully limited grandparent visitation statutes-even over parental objections.39

Even against this background, though, chapter 2's protection of third-party rights in children is strikingly broad. For, as the term "parent" is defined in section 2.03, it includes not only a "legal parent" (that is, a person holding parental status on traditionally recognized grounds),40 but also a "parent by estoppel"41 and a "de facto

parent."42 Each of these additions proposes an extraordinary shift in legal paradigms of parenthood,43 but because the "de facto" parenthood category is of most practical relevance in debating the scope of standing in child custody litigation,44 it is that category which warrants immediate attention here.

A. Defining "De Facto" Parenthood

From the perspective of litigation, chapter 2 defines "de facto parent"45 to establish four elements for an individual plausibly to claim such status as against a biological or other "legal" parent: (1) residence with a child for at least two years, (2) a motivation "primarily other than financial compensation," (3) either "the agreement of a legal parent" or the "complete failure... of any legal parent to perform caretaking functions,"46 and (4) having "regularly per

formed a share of caretaking functions at least [equal to] ... that of the parent with whom the child primarily lived."47 A comment to section 2.03 describes these requirements as "strict, to avoid unnecessary and inappropriate intrusion into the relationships between legal parents and their children."48

But how strict are they really, especially when considered in the context of standing, prior to all the litigation costs and strains that can so burden parental autonomy? When sections 2.03 and 2.04 are read together, they seem to open the courthouse door to custodial claims to de facto parenthood by a broad array of people who have cared for, or lived in the same household with, a child. Most crucially, absent clear evidence of a "primarily" financial motive,49 anyone who shared the same household with a biological parent and her child for a period longer than two years would almost certainly be able to threaten a suit for partial custody that would survive a motion to dismiss, or even summary judgment. The necessary vagueness in the description of many of the "caretaking functions,"50 combined with the vagaries of witnesses and judges, would force any such biological parent to take the threat of such litigation very seriously.

Even the requirement that the applicant for "de facto" parenthood show "the agreement of a legal parent"51 will do little to screen claims at the level of standing. It is noteworthy that, in contrast to parents by estoppel, who must show that they assumed a parental role pursuant to an agreement with both legal parents (if there are

two),52 de facto claimants need only show the consent of one. Further, that agreement, according to the comment, "may be implied by the circumstances," and the requirement is meant only to screen out relationships that arise "by accident, in secrecy, or as a result of improper behavior."53 Biological parents who choose to live with their children in the same household with other adults may very well find themselves saddled with co-parenting relationships they never fully anticipated.

That both stepparents and "domestic partners" as defined in chapter 6 54 would frequently qualify for status as de facto parents is a fact which the comments and illustrations to chapter 2 make very clear.55 Indeed, the "joint assumption of parental functions toward a child" is one of the key indicators under chapter 6 as to whether a couple "shared life together" and so qualified as "domestic partners."56 Any litigant seeking a property settlement under chapter 6 would thus have every incentive to make allegations that would coincidentally support a claim for de facto parenthood and custodial rights. It is one of the remarkable oddities of the Principles that the drafters suggest a "cohabitation period" of three years for a presumption of domestic partnership to arise,57 but set a minimum of only two years for a claimant to de facto parenthood of another's child58-without any explanation as to why a housemate should be enabled more easily to intrude on the parent-child relationship than on the property interests of a biological parent.59

B. Empowering "De Facto" Parents.

To make matters more frightening for the biological custodial parent, the extent of the custody claim that an ex-spouse or housemate can plausibly make goes far beyond traditional boundaries of visitation. For, in order to allege de facto parenthood, the former partner must allege that she shared at least equally in "caretaking functions." But such an assertion in turn would support, under the qualified mirror-the-past allocation standard of section 2.09, a grant of almost half the custodial time to the "de facto" parent.60 Elsewhere, in section 2.21, chapter 2 does establish a presumption that a biological parent should receive "the majority of custodial responsibility" over a de facto parent, but then withholds the benefit of this rule in the rather easily litigated cases where the biological parent is unfit or "has not been performing a reasonable share of parenting functions," or where the result would "cause harm to the child."61 And even with the full benefit of the presumption, the biological parent is apparently entitled only to a "majority" of custodial time-- which could mean custodial rights for the ex-housemate of fortynine percent.

Likewise, for the biological parent who does not have primary custody of a child while the child's other biological parent is living with a new partner, a claim for de facto parental status by the stepparent or partner will carry severe risks of diminished access to the child. As noted above, upon dissolution of her second marriage the mother who already held primary custody can at least expect to retain a "majority" of custodial responsibility. But no such protection exists in section 2.21 for the nonprimary custodial parent. Thus, the biological father might see his share of custodial responsibility cut in half to accommodate the new de facto parent.62 Thus, in one of the

illustrations to section 2.21, a biological noncustodial father begins with one and one-half days per week of custodial responsibility after his divorce from the biological mother.63 After her marriage to a second husband breaks up, the biological father and stepfather are allocated alternating weekends, thus reducing the biological father's custodial time from about six to about four days per month.64 And this reduction may be repeated because chapter 2 places no absolute limit on the number of de facto parents a child can have, other than to say that an allocation of custodial rights to such a claimant should be denied when it "would be impractical in light of the objectives of this Chapter."65

The Reporter for chapter 2 acknowledges evidence supporting the "possibility of strategic behavior in requesting custody"66 and recognizes the insightful observation of the West Virginia Supreme Court in Garska v. McCoy that unpredictability in custody battles

breeds the "irresistible temptation to trade the custody of the child in return for lower alimony and child support payments."67 Yet the chapter's recognition of broad standing rights for claimants to de facto parenthood, combined with the substantial widening of the range of potential claims for property in chapters 4, 5, and 6, threatens just this kind of poisonous strategizing. Why not suggest, in negotiations over property or compensatory payments, that the former stepparent or roommate is seriously considering a custody claim? Just the fear of protracted litigation-not to mention the vastly heightened potential for losing exclusive custody at the end-may well be enough to lubricate agreement on other issues. Even the other biological parent, the one not involved in the dissolution, may be forced to consider trading off some financial contribution to the dissolving partners in order to preserve the full extent of her custodial privileges-or worse, to consider resorting to expensive and harmful litigation to challenge the de facto parent's claim. To make matters worse, the strong deference that chapter 2 imposes on courts with respect to parental agreements68 means that strategic behavior is even more likely than under current law to go undetected by the court issuing the final decree.69

For the ex-partner of a biological parent, then, the benefits of bringing a plausible claim to de facto parenthood will be tempting, and, as it turns out, the costs will be minimal. That is because chapter 3 of the Principles imposes no child support obligation whatsoever on de facto parents, which is in sharp contrast with its full imposition of such an obligation on all biological parents and "parents by estoppel."70 A successful de facto claimant could thus achieve the

right to have custody of the child nearly half the time with no danger of facing a child support award. In cases where a de facto claimant has higher income than the biological parent, this would provide a particularly lucrative shield against the substantial support award he would face under the income formula approach of chapter 3.71 Stepparents and partners with greater resources than the biological parent are thus free to exploit all the advantages such resources give to litigants, with no concern about facing a long-term financial obligation to the child caught in the middle.72 Finally, the disparity of support obligations between de facto parents and parents by estoppel might well have the unfortunate unintended consequence of discouraging parties from seeking the latter status, which involves taking full responsibility for the child.73 Because of the substantial overlap in qualifications between the two categories,74 why not instead seek the free ride of de facto parenthood?

All these practical concerns with the combined effect of chapter 2's standing and de facto parenthood provisions might seem tolerable if, in the clear majority of cases, children were likely to benefit from them. But, of course, if de facto parenthood claims are frequently made only as threats to cow a biological parent into a favorable dissolution settlement, children will receive only a lower stan

dard of living while gaining no continued contact with the former stepparent or domestic partner. The very use of such a threat, indeed, might be expected to lead a biological parent who had been forced into such a trade-off to cut off, as much as possible, all future contact between the child and the former spouse.

And while it is beyond the scope of this article to debate the theory of de facto parenthood on which these portions of chapter 2 rest, it is at least important to note that the concept is not one that has been established with any clear degree of scientific certainty or judicial consensus. It builds, of course, on the notion of "psychological parent" developed by Goldstein, Freud, and Solnit in the 1970s, but goes far beyond it.75 For Goldstein and his colleagues explicitly declared, then and subsequently, that when two "parents" of a child divorce or separate, "[t]he noncustodial parent should have no legally enforceable right to visit the child ...."76 In her scholarship, Professor Bartlett, the Reporter for chapter 2, has of course acknowledged both this primary debt and this last disagreement, and has provided powerful arguments for the contrary view.77 Still, empirical support for either view must be regarded as thin, and chapter 2 cites virtually none in support of its sweeping proposal to give custodial standing to stepparents or partners who have resided with a child for as little as two years.78

Case support is equally thin.79 Indeed, cases that have persuasively used a "psychological parent" approach to give a third party visitation or custody have often involved such dear-cut parental default, or such a clear prior agreement by the parent to give near-exclusive parental status to the third party, that they would fall into the category of parent by estoppel as defined by chapter 2.80

There is, then, much to lose in the formulation of de facto parenthood provided by chapter 2, while the extent of the gain is highly contestable. What is gained in predictability through adoption of the "approximation" standard is lost through expansion of the number of potential claimants. Opportunities and, more importantly, incentives for abuse of such custody claims are enormous, and the threat to the security of parent-child relationships-especially those between children and their noncustodial biological parents-is severe. It seems fair, in the end, to call this proposal radical, even courageous, and to believe at the same time that the change it promises is anything but progressive.

IV. GRANDPARENTS AND STANDING UNDER CHAPTER 2

Yet, however daring chapter 2 may appear in what it overtly proposes regarding the custodial rights of stepparents and partners, its silence in another area is even more startling. For, without ever clearly saying that it is doing so, and without justifying its approach, chapter 2 would apparently sweep away the standing of grandparents, recognized in virtually every state,81 to petition the court for visitation with their grandchildren whenever both of the child's parents are alive but not living together. Again substantive debate over the underlying policy choice of the drafters is beyond the reach of this article, but when the resulting positions of the "new" and the biological extended families are compared, the coherence of chapter 2's overall approach to custody seems seriously compromised.

An early comment in chapter 2 appears ready to dodge the issue of grandparent visitation altogether, by declaring that the chapter "does not cover challenges by third parties to the authority of legal parents living together, or to the authority of ... the child's only parent."82 Thus, as an illustration makes plain, its provisions are inapplicable to one of the usual situations in which grandparents seek visitation-when one of the child's parents has died.83 Nor would chapter 2 be applicable to support or deny a grandparent's claim to visitation against "two parents living together.84 On the strength of the inapplicability of its provisions to the "intact one- or two-parent family," the comment provides the rather tepid assurance that "'[g]randparent visitation' is not necessarily inconsistent with the provisions of chapter 2."85

Only short reflection, though, reveals that this concession is of very limited value. For most states do not in fact permit grandparents to sue for visitation as against intact two-parent families.86 In addition, several state courts have declared unconstitutional visitation statutes that permit interference with an intact family.87 It is true, of course, that grandparents typically do have standing to seek visitation after the death of a parent, but it is also true that children living with a widowed parent are far fewer in number than those living with a divorced, separated, or never-married parent.88 And it is equally clear that chapter 2 does cover all visitation claims in the context of dissolution of a marriage or domestic partnership, or indeed in any context where both parents are alive but not living together89situations which most grandparent visitation statutes do cover.

Section 2.04's standing provisions do not mention grandparents or biological extended family members at all, but instead simply limit the right to petition for custodial allocation to the three varieties of "parent" described above.90 A grandmother who could show that she had lived with a child for at least two years and had shared at least equal caretaking responsibility with a parent during that period could of course petition, like a stepparent, for de facto parental status. Otherwise, though, she would simply be one of the "other individuals" who may be permitted to intervene in dissolution actions already begun-and then only in "exceptional cases."91 The term "excep

tional cases," of course, is one that has been read very narrowly in custodial cases.92

Most significantly, what about the common family situation in which the biological parents never formed a marriage or domestic partnership?93 These are circumstances in which grandparents frequently play an extremely important role, but one that would fall short of de facto parenthood.94 In such cases, there will be no dissolution action in which a grandparent can intervene, and section 2.04 could not be clearer in denying the right of such a nonparent to initiate an action.95 Why deny grandparents the right to seek visitation in circumstances of illegitimacy or divorce while leaving the visitation right intact for bereavement?96 Isn't the grandparent arguably as im

portant in either case, as now perhaps providing the only available access to the history, values, and traditions of that side of the family?97 Might not the presence of a grandparent often be more important to a child who never knew her father, or whose father has divorced and deserted her, than to one who enjoyed the benefit of a now deceased but loving father?98 There may be an underlying rationale for this strange distinction, but it remains entirely unexpressed and undeveloped.99

Equally strange, though, is the failure to explain why divorced stepparents should have the right to petition for very substantial custodial rights and grandparents cannot petition under most circumstances for even limited visitation. It is the former, not grandparents, who will already be the opposing party in a court proceeding. It is the divorcing stepparent, not a grandparent, who has something to gain in negotiations over property division by waving the red flag of custody litigation. And it is custodial rights in the stepparent, not visitation rights in a grandparent, that are most likely to compromise the existing relationship between the child and his noncustodial biological parent. Finally, it is stepparents and domestic partners, not grandparents, who are more likely to have engaged in abuse of the custodial parent or the child100-a fact of particular relevance given

chapter 2's laudable recognition of domestic or child abuse as a factor permitting a court to reduce or deny custodial privileges to the abuser.101 Over one million children in this country live with at least one grandparent and no parent; 102 the number living only with a stepparent is surely geometrically smaller. The drafters of chapter 2 are simply silent in the face of these anomalies.

The awkwardness of chapter 2 regarding grandparent rights may partially be the result of the choice early on to conflate traditional notions of custody and visitation into the general term "custodial responsibility."103 While permitting great elegance of language throughout chapter 2, this general phrase does not permit nuances that the traditional terms embody and the grandparent visitation statutes exploit. The very fact that grandparents cannot possibly achieve full or joint physical custody under those laws makes their application, however controversial, limited in its potential for harm to parental autonomy. "Custodial responsibility," because so much broader in its potential application, does seem in general a right we

would not want grandparents to have standing to seek. But that very breadth contains similar dangers for the proposed status of de facto parenthood, which would ultimately be much less threatening to core parent-child relationships if it gave less disruptive power to those who achieved it.

A child, if she is lucky, receives over the course of her childhood the love and support of many adults outside her nuclear family, but this evolving, often makeshift extended family is usually rooted in the love those adults feel for the child's parents. If it is desirable, as chapter 2 declares, to give standing in custody litigation to those whose love for the parent was sexual, why not give similar rights to those, like grandparents, uncles, and aunts, whose love for the parent is of longer duration and, all too often, of greater durability? Chapter 2's unstated but unmistakable preference for the romantic over the biological extended family is mysterious and ultimately perverse.

V. STANDING AND REPRESENTATION RIGHTS OF CHILDREN

The very fact, however, that reasonable minds can differ over the categories of adults who should have access to custody litigation and that every child caught up in such litigation faces serious dangers from an erroneous outcome, leads to one final puzzle with the standards of chapter 2. Why, in this perilous arena, is the child herself not entitled to representation and a voice? Although chapter 2 would permit the court to consider the "firm and reasonable preferences" of an older child regarding a custodial allocation,104 it does not give children a right to participate in custodial proceedings as a party,105 and is virtually silent as to their rights to legal representation." This 104. PRINCIPLES (Tentative Draft No. 4), supra note 2, 2.09(b), at 248.

105. Id. 2.04, at 232-33 (allowing intervention by nonparents only in "exceptional cases").

106. Under the Principles, the court "fi]n its discretion ... may appoint a lawyer to represent the child," but only if it would be "helpful" to do so, and only "if the child is competent to direct the terms of the representation." PRINCIPLES (Tentative Draft No. 3, pt. I), supra note 2, 2.15(3), at 289. Likewise, the court has the discretion to "appoint a guardian ad litem to represent the child's best interests." Id. 2.15(2). But the Principles give no guidance as to what circumstances would clearly call for such appointments, and the comments give prominence to the "significant difficulties" such appointments may present. Id. 2.15 cmt. b, at 291-92. Moreover, simply being represented in the litigation does not give the child "standing" to raise claims for an adjustment of custodial rights, whether in favor of a biological or a de facto parent. Even fully represented children are not "parties" to the action under section 2.04. See supra text accompanying notes 33-35.

is surprising, for while legal representation of small children in custodial battles is of debatable merit,107 Chapter 2's substantial broadening of the potential claimants to custody increases the stakes for the child in such battles.108 The chance it creates for a child to live with a nonrelative no doubt means that in some cases it will be easier to reach a result that comes closer than present law allows to meeting the child's "best interests." But if there are more princes now available to the child, there are also more frogs. And, as outlined above, the risks of the property/custody trade-offs in private dissolution agreements rise substantially through the inclusion of stepparents and domestic partners among the players, and are amplified further by chapter 2's strong requirement that judges defer to private custody agreements. Even if a child's voice cannot always prevail in a proceeding of such moment, she at least ought to have standing to raise it.109 Otherwise, how will the "individualized. . . interests of

individual children,"110 purportedly a cornerstone of chapter 2's approach, be realized?

If the child at the center of the custody battle is given standing to intervene, moreover, the need to give de facto parents the automatic right to litigate custody is likely to disappear. For the de facto parent-child relationship, if it exists at all, is two-sided, and it is the child's loss of continuity that we fear. As Justice Brennan noted in Smith v. Organization of Foster Families for Equality and Reform, if a foster parent "does not care enough about the child" to request a preremoval hearing, "it is difficult to see what right or interest of the foster child is protected by holding [such] a hearing."111 Conversely, if a child does not care enough about a relationship with an adult who is not her biological parent to raise a claim seeking to preserve the relationship, it is hard to see the point of permitting that adult to complicate the custody proceeding with a de facto parenthood claim.

Of course it is not a simple matter to determine what a child really "cares about," and adult litigants can to some extent illuminate that issue.112 But courts could protect the interests of children in this area with far less danger to other important interests if they adopted three relatively modest reforms: (1) screening custody cases early to determine those in which a protected de facto parent-child relationship might exist,113 (2) where such screening suggests the need for it, appointing a guardian ad litem or attorney for the child to investigate and evaluate the nature of the relationship, and finally (3) granting standing to the child through her representative to advocate for preservation of important relationships with nonbiological parents in ongoing custody litigation.114 A guardian ad litem or child's attor

ney, even if misguided in urging preservation of a de facto relationship, will have none of the financial or personal motives to litigate the issues that can enter the arena if the putative de facto parents are themselves given standing to raise custodial claims.115 Limiting standing for de facto parenthood claims to the children involved in such relationships would provide the most direct, and least dangerous, approach to discovering their best interests-the goal, in the end, of all custody principles.116

VI. CONCLUSION

The standing principles of chapter 2 thus present, on this early reading, a substantial conundrum. Individuals whose only connection to the child is rooted in a now failed love for the child's parent will have license to pursue in court virtually unlimited custodial privileges regarding the child, even in the face of knowledge that some significant part of that litigation, or its threat, will be purely strategic. Those who succeed in their claims will become de facto parents, part of a new extended family for the child, a family that can continue to grow as the custodial parent moves on to other loves. As it wins new shares of the child's limited time, this new extended family can crowd the custodial rights of the noncustodial biological parent. In the meantime, some voices of the traditional extended family will be silenced. Grandparents who have not lived with a child will not be able to seek visitation, or indeed any other role in the child's life, except in the rare circumstance of a parent's death. They will be able to pass on family property to the child, but will have no standing to bestow family stories or a sense of belonging. Nor will the child, the

potential pawn in dissolution battles, typically be allowed to put forward claims on her own behalf or have independent representation to ensure that any agreement reached by the parents protects her interests.

Nothing could be clearer from chapter 2 than its passionate commitment to addressing family disarray in a manner that furthers children's interests and welfare, in part by broadening the conception of the family that is available to them. But the law, unfortunately, is a dangerous tool, not easily refitted to unfamiliar projects. It may be that chapter 2's conception of de facto parenthood-and, consequently, the new extended family-has merit. As currently conceived, though, its interaction with crucial standing principles does not.