Journal
Havard Civil Rights-Civil Liberties Law Review
Volume
54
First Page
549
Last Page
627
Abstract
Across the country, state legislatures have created out-of-court, form-based processes that replace the adjudicative process in traditional courts. In the family law context, these out-of-court forms allocate fundamental parental rights, principally for unmarried and single parents, who disproportionately have low incomes and are people of color. In most states, instead of presenting their requests to a judge in a courtroom, parents can sign legal forms in a hospital room to establish paternity or at their kitchen table to assign their custodial rights to a third party. When a child is born to an unmarried mother, as 40% of children are, the man in a different-sex couple can sign a voluntary acknowledgement of paternity form (VAP) to establish that he is the child’s father. When a single parent experiences a destabilizing life event, such as eviction or incarceration, the parent can delegate parental rights to a non-parent by executing a custodial power of attorney form. And when a single parent suffers from a debilitating illness, the parent can sign a form to designate a standby guardian to take care of the child when the parent is no longer able to fulfill caretaking duties. In each context, there is no court filing, no judge, no lawyer, and no courtroom. Signatures on a form carry the same weight as adjudication in court, conferring the legal right and responsibility to care for a child on an individual.
This Article calls these out-of-court, form-based processes “paper courts,” and argues that, in the family law context, they play a critical but unappreciated role in determining parental rights. While paper courts can be a welcome addition to family law—increasing access to justice and parental agency—paper courts also raise serious concerns about informed consent and procedural due process. This Article discusses the challenges of balancing the often-competing interests in access, agency, and due process in the designation of parental rights in paper courts. To balance these concerns, this Article proposes solutions that strengthen informed consent and procedural due process protections while preserving accessibility and parental agency.
Much of family law scholarship addresses the allocation of parental rights in the context of court procedures and court-adjacent processes such as settlement negotiations and mediation. But this scholarship overlooks the form-based processes taking place completely out of court that structure the lives of families with the same legal authority as adjudication in court. By surfacing and analyzing this practice, this Article fills a significant gap in the account of family law and makes both a descriptive and normative contribution to the family law literature.
Repository Citation
Tianna N. Gibbs,
Paper Courts and Parental Rights: Balancing Access, Agency, and Due Process,
54
Havard Civil Rights-Civil Liberties Law Review
549
(2021).
Available at:
https://digitalcommons.wcl.american.edu/facsch_lawrev/2283