Precipitating Legal Change: Children's Rights, Family Definitions, and Judicial Decision-Making

Ball State University, Muncie IN

Investigators

Abstract

This research focuses on custody disputes between biological and nonbiological parents in order to explore how changing conceptions of the family and shifting ideas about parents' and children's rights influence judicial decisions over time. Although the project will enable researchers to explore a number of questions germane to issues of family, children's and parents' rights, and legal decision-making, one primary aim of this research is to empirically examine the efficacy of two arguments that are often suggested as potential avenues for legal change in custody disputes between biological and nonbiological parents. In court, biological parents are often favored in these disputes, but many scholars argue that such a preference ignores the psychological attachments that exist between children and their nonbiological parents. Recent work has, therefore, advocated two distinct approaches for promoting legal changes aimed at protecting children's attachment relationships: some scholars argue that legal recognition of expanding definitions of the family is the key to protecting children's attachments, while others argue that such protection is contingent upon legal recognition of children's rights. This research examines the efficacy of these competing sources of legal change through an in-depth, longitudinal, mixed methods study of judicial decision-making in eight states over a nearly 40 year period. In so doing, this research contributes to scholarly understandings of 1) the legal and social factors that precipitate legal change, 2) the process of judicial decision-making, 3) the implications of changing social and legal definitions of the family for various litigants in custody disputes, and 4) the efficacy of children's rights arguments in custody decision-making. By disseminating these results to legislators, lawyers, judges, and other policymakers, this study also has the potential to influence the lives of children and their parents (both biological and nonbiological) by informing judicial decisions and influencing policy recommendations.