5 Undeserved Trust: Reflections on the ALI’s Treatment of De Facto Parents

In chapter 2 of the Principles, the ALI proposes sweeping changes to the legal conception of parenthood. It would confer custody and visitation “rights”1 on a stepparent or ex-livein lover of a child’s legal parent2 who shared caretaking responsibility for a child for as little as two years (“Ex Live-In Partner”).3 Such an individual is recognized by the Principles as a “de facto parent,” a term the Principles borrow from case law. The Principles would significantly enlarge the rights these individuals receive under state law, however. With the same stroke, the ALI would dispossess legal parents of the prerogative to decide who continues to have contact with their child.4 In many ways, the ALI is engaged in an admirable undertaking: to provide children with enduring contact with the “only father [a] child ha[d] known.”5 But like much of our experience with “re-imagining” family relations, significant unintended consequences