Document Type

Article

Publication Date

2011

Publication Citation

2011 University of Chicago Legal Forum 233 (2011).

Abstract

How secure are the legal relationships between gay or lesbian parents and their children when those families move from one state to another? What happens when a non-biological parent who has been legally recognized as a full parent under the laws of one state moves with her same-sex spouse and their child to a different state where public policy is unfriendly toward same-sex relationships? Or what happens when a same-sex couple adopts a child, thus becoming its full legal parents, then seeks recognition of their parental status in a different state?

In this Article I argue that the traditional doctrines of conflict of laws, as well as constitutional and statutory full faith and credit -- which I refer to collectively as the "state interests paradigm" -- will not adequately protect the rights of such non-biological parents, and thus the integrity of gay/lesbian families, but that well-established constitutional due process principles preclude a state from refusing to recognize a legal parent-child relationship that was established earlier in another state.

Because the state interests paradigm does not account in any formal way for the individual rights and interests of parents or children, it typically will be too deferential to anti-gay state public policy arguments that may be invoked to deny recognition of a parent-child relationship and thus effectively terminate parental rights without due process. It is well established that the state may not intrude without good cause into established relationships within the nuclear family. Recognizing this principle in litigation over interstate recognition of parental rights would provide a necessary corrective to the state interests paradigm and a check against state interference with extant family relationships.