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The Official Podcast for the Minnesota Law Review - https://journals.law.umn.edu/mlr
00:00:11:12 - 00:00:39:28
Unknown
To the Experto Crede podcast. I'm your host, volume 106, online editor of the Minnesota Law Review. And today I have the pleasure of welcoming professors daily and to speak about their peaceful and professor and Alstott, Psychological Parenthood professors. Thank you for coming on today. Thank you for having us. So to begin, I always like to ask about what the impetus for the pieces.
00:00:39:31 - 00:00:50:31
Unknown
And so I'm curious what brought you to write this piece and what kinds of what kinds of topics are you building on in your article?
00:00:50:36 - 00:01:28:26
Unknown
Well, I'll start. I think this was kind of an interesting confluence of interests. We came together around some work being done at the Yale Child Study Center with clinicians and researchers, working with children, working on developmental issues relating to children. And the three of us kind of have overlapping interests coming from different perspectives, different backgrounds in our research and writing.
00:01:28:31 - 00:01:58:43
Unknown
Mine is family law, and I began my career teaching and writing in the area of family law, and got very interested in the intersection of law and developmental psychology in particular. And that sort of brought me to an interest in psychological parenthood and the kinds of issues that we talk about in this paper. I think Doug and Anne kind of arrived at the same place from different perspectives.
00:01:58:45 - 00:02:42:24
Unknown
Doug, would you like to, you know, give your thoughts on that? Yeah. So so I had been working a lot on questions of parental recognition. So while while an was a bit more focused on the interest of the child, I was focused on questions of when the law treats someone as a parent of a particular child and had been pressing, essentially the concept of psychological parenthood in law, so that the law would treat people as parents when they are actually parenting a child, as opposed to simply because they're a genetic parent, or they gave birth to a child, or they're an intended parent.
00:02:42:24 - 00:03:14:28
Unknown
And professor also had been working on questions of social welfare and public policy to support the parent child relationship. But really, the a lot of the article is framed around insights from developmental science and that as, as Professor Jelly said, came from our work with colleagues at the Yale Child Study Center. And I think it's important to sort of recognize the tradition that we were working in.
00:03:14:31 - 00:04:06:52
Unknown
So the the 1970s witnessed one of the most important collaborations between law professors and child development researchers and psychoanalysts. When colleagues from the Yale Child Study Center and the law school and worked on what came to be called Beyond the best interests of a child, the child is a series of important books that was trying to move towards a more child centered approach and was using insights from child development, and we were very self-consciously building on that and working with folks at the Yale Child Study Center who had worked with those original collaborators, but also were writing at a time where there were important commitment to equality and inclusion.
00:04:07:07 - 00:04:38:28
Unknown
The animated our work in a way that weren't as central to the work that our predecessors had done. Yeah. And I think bringing up the installment work is important because what they what they were really the first to point out was that the law was very focused and continues to be very focused on parental interests and needs, and that was what they they were interested in moving.
00:04:38:31 - 00:05:20:52
Unknown
Family law, in particular the law of child placement, child custody away from an approach that said, well, children are sort of, you know, furthering parental interests and rearing kids, which is an important interest. But the law at that point really ignored children's interest. You know, what might be best for for children? And it's that that we really are inspired by the idea that when you look at the welfare of the child, it's really the psychological bonds rather than legal interests or parental rights that defines what's most important.
00:05:20:52 - 00:05:59:52
Unknown
And so so we're inspired by their work. As Doug says, there were limitations. They were somewhat rigid, and their understanding of the family, they didn't take into account broader values of equality as Douglas thing. So that's that's our challenge is to develop and we hope we've achieved that, developed the theory of the laws, recognition of and support for the psychological parent relationship without falling into some of the same problems that that they that you can find in their work.
00:05:59:57 - 00:06:27:43
Unknown
I think it is quite the challenge. What I took from the work is that this is a fundamental reconstruction of where the child is in our system of dealing with children. Moving from almost the child is the creature of the parents. The justice McReynolds standard from now almost a little more than a hundred years ago, to entirely different system of looking at the world from the child's eyes almost, which is a massive project.
00:06:27:43 - 00:07:07:12
Unknown
And I think you accomplished it. But I would love to know a little bit more about what that conceptual means in your minds. So I guess I'll start by, and I actually look to an as sort of a beacon of this perspective in the law, and has been doing a lot of theorizing on child centered family law. I think it's sometimes in the area where I work, parentage people tend to have an assumption that it is parent centered, because the question is whether a particular person has the legal status of parents.
00:07:07:12 - 00:08:11:21
Unknown
And what I've tried to do is push towards an understanding of parentage that's more child centered. By focusing on recognition of the relationship that the child has with someone who's their parents, regardless of whether that person is a biological parent or even a legal parent, and that the law should actually track the parent child relationship. And so in the paper, in the article, we tried to elaborate that in the section on parentage by not arguing for a wholesale overturning of what our parentage frameworks look like, but instead offering a concept that can provide a comprehensive approach to parentage that will lead to some important changes, but also provide different justifications for some of our existing
00:08:11:21 - 00:08:28:04
Unknown
laws. So, for instance, we don't say biological parents shouldn't be treated as legal parents. Instead, we say biological parents ordinarily should be treated as legal parents. But it's not because there is something.
00:08:28:09 - 00:08:57:12
Unknown
Special about the biological tie, but instead because people act on the fact that their biological parent and ordinarily form a parent child relationship. But there are going to be a lot of circumstances in which we wouldn't treat a biological parent as a parent. And that includes not just situations in which the person was a sperm donor and egg donor, but situations in which someone else has been functioning as the parent of that child.
00:08:57:12 - 00:09:22:33
Unknown
So there are too many cases out there in which another person is parenting. A child is the primary caregiver of that child, and then the biological parents moved in. And in some of these cases, it's after four years, five years, six years, ten years, 14 years, and a court just shifts custody to the biological parent because there are biological parent and a legal parent.
00:09:22:33 - 00:10:03:40
Unknown
And we are urging an approach that focuses on that child and that from that child's perspective, that biological parent is not their psychological parent. Their psychological parent is the person who has been parenting them. And we want an approach that actually treats that person as a parent and protects that relationship, because doing so protects the child's interest. Yeah, I think that, you know, you do see, in the legal writing the idea that, you know, biological parents, it does serve children's interests because they're the ones most likely to to care for children.
00:10:03:40 - 00:10:29:02
Unknown
And we we agree with that. But the transformational part of this paper, I think, has to do with something that you are getting at, Lee, which is we're looking we're coming at these issues. We're asking legal decision makers and lawmakers to come at these legal issues from the perspective of the child. And that's, I think, what Goldstein, Freud and Solnit did.
00:10:29:04 - 00:10:55:57
Unknown
They asked, you know, in a way, they were asking who is the parent from the child's perspective? And that's what we're doing in this paper. I mean, as Doug was saying, it's it's not who has sort of ownership rights in the child or Buddhist biology identifies the child who was the child, you know, experience as their parents. And so that there's something quite I think there is something transformational about it.
00:10:56:00 - 00:11:28:21
Unknown
We don't we we don't cover the whole realm of law in this paper. We take really two doctrinal. We have two, two kind of sections. One is a section that's about kind of redistributive. We're asking, you know, we sort of ask the question, how would resources and society be redistributed given given an emphasis on protecting the psychological parent relationship.
00:11:28:21 - 00:12:09:09
Unknown
But we also have a protective dimension to this principle, which is our parentage and custody sections, which looked at doctrine, how to how should the law grapple with sort of children's relationship to their parents when issues come up and, you know, the importance of protecting the psychological parent relationship, but we don't cover every possible issue. It's an invitation, really, to others to start, you know, to really explore what it would mean to make the psychological parent relationship the primary interest.
00:12:09:14 - 00:12:42:09
Unknown
So, well, I certainly hope that not only people, professors take up that that gantlet to write on this topic more, but also we're definitely going to talk about some of the things you all mentioned. I really want to start with setting up the scheme. So how would you describe what psychological parenting and parenthood is and how would you describe it, in contrast to the best interest standard that I think everyone that's seen family law knows and maybe loves or doesn't love?
00:12:42:14 - 00:13:14:19
Unknown
I'll take a stab and then I'll let and refine what I have to say. So from our perspective, the psychological parent child relationship is the relationship that the child has with the person who is providing the child with consistent day to day care, emotional support. It's the person that the child turns to for safety and security. And from the child's perspective.
00:13:14:24 - 00:13:53:16
Unknown
The status of that person. In our legal system is not relevant. What's relevant is is that person, the person the child can depend on for care and safety and security? And is that person providing that care and nurturing in a consistent fashion? And that's the relationship that the science tells us is so critical to a child's development and a whole range of consequences flow from having what the researchers call a secure attachment to this parental figure.
00:13:53:21 - 00:14:47:14
Unknown
And so for us, that's a pretty clear guideline for principle around which to build law reform. And in contrast to the best interest of the child standard, which has and activists have argued for decades, is indeterminate, it's something that decision makers can import their own values into. What I think is best for a child might be different than what you think is best for a child, and it allows a range of considerations to enter into the analysis that we think are not targeted primarily at what is required for this decision to be the best decision for this child.
00:14:47:14 - 00:15:19:33
Unknown
And that's focusing on and prioritizing and protecting that psychological parent child relationship. And so even if some people would agree with us that prioritizing the psychological parent relationship is in the best interest of the child, and we're trying to shift away from a standard that allows people to reach vastly different decisions across similar cases because of different values and ideas about children's interests.
00:15:19:36 - 00:15:57:12
Unknown
When we know that what is important for the child, especially at these early stages, is protecting and promoting this psychological parent relationship, yeah, nothing to refine their. Doug, that was a really nice summary of the the psychological parent principle. I mean, it's it's a kind of it's a transparent principle. It's clear. It's reflects the developmental research and in its transparency and its predictability.
00:15:57:16 - 00:16:38:38
Unknown
And it's sort of scientific grounding. It I think, serves the values that we share and the values being as we identify them in the paper, values of democracy, equality and inclusion. And those values do come in to modify the application of the psychological parent principle. In some cases, we might be, you know, we're we're sensitive to issues surrounding LGBTQ families or families of color or gender inequality issues.
00:16:38:43 - 00:17:04:14
Unknown
It's it is I mean, despite our emphasis on it being a scientific principle rooted in scientific principles, it's also normative. You know, it. It reflects what we think of as, you know, what's best for the.
00:17:04:19 - 00:17:33:12
Unknown
And welcome to the podcast. I'm your host, Lisa, volume 106, online editor of the Minnesota Law Review. And today I have the pleasure of welcoming professors daily and need to speak about their people on Professor and Alstott, Psychological Parenthood professors, thank you for coming on today. Thank you for having us. So to begin, I always like to ask about what the impetus for the pieces in.
00:17:33:16 - 00:17:44:02
Unknown
I'm curious, you know, what brought you to write this piece and what kinds of what kinds of topics are you building on in your article?
00:17:44:07 - 00:18:21:57
Unknown
Well, I'll start. I think this was kind of an interesting confluence of interests. We came together around some work being done at the Yale Child Study Center with clinicians and researchers, working with children, working on developmental issues relating to children. And the three of us kind of have overlapping interest coming from different perspectives, different backgrounds in our research and writing.
00:18:22:02 - 00:18:52:15
Unknown
Mine is family law, and I began my career teaching and writing in the area of family law, and got very interested in the intersection of law and developmental psychology in particular. And that sort of brought me to an interest in psychological parenthood and the kinds of issues that we talk about in this paper. I think Doug and Anne kind of arrived at the same place from different perspectives.
00:18:52:16 - 00:19:36:02
Unknown
Doug, would you like to, you know, give your thoughts on that? Yeah. So so I had been working a lot on questions of parental recognition. So while while an was a bit more focused on the interest of the child, I was focused on questions of when the law treats someone as a parent of a particular child and had been pressing, essentially the concept of psychological parenthood in law, so that the law would treat people as parents when they are actually parenting a child, as opposed to simply because they're a genetic parent, or they gave birth to a child, or they're an intended parent.
00:19:36:02 - 00:20:08:00
Unknown
And professor also had been working on questions of social welfare and public policy to support the parent child relationship. But really, the I mean, a lot of the article is framed around insights from developmental science and that as, as said, came from our work with colleagues at the Yale Child Study Center. And I think it's important to sort of recognize the tradition that we were working in.
00:20:08:02 - 00:20:40:57
Unknown
So the the 1970s witnessed one of the most important collaborations between law professors and child development researchers and psychoanalysts. When colleagues from the Yale Child Study Center and the law school and worked on what came to be called Beyond the Best Interests of a child, The child, a series of important books that was trying to move towards a more child centered approach and was using insights from child development.
00:20:40:57 - 00:21:34:48
Unknown
And we were very self-consciously building on that and working with folks at the Child Study Center who had worked with those original collaborators, but also were writing at a time where there were important commitment to equality and inclusion. The animated our work in a way that weren't as central to the work that our predecessors had done. Yeah. And I think bringing up the front installment work is important because what they what they were really the first to point out was that the law was very focused and continues to be very focused on parental interests and needs, and that was what they they were interested in moving family law, in particular the law of child placement,
00:21:34:50 - 00:22:14:26
Unknown
child custody, away from an approach that said, well, children are sort of, you know, furthering parental interests and rearing kids, which is an important interest. But the law at that point really ignored children's interest. You know, what might be best for for children? And it's that that we really are inspired by the idea that when you look at the welfare of the child, it's really the psychological bonds rather than legal interests or parental rights that defines what's most important.
00:22:14:26 - 00:22:53:24
Unknown
And so so we're inspired by their work. As Doug says, there were limitations. They were somewhat rigid, and their understanding of the family, they didn't take into account broader values of equality, as Douglas saying. So that's that's our challenge is to develop and we hope we've achieved that, developed a theory of the laws, recognition of and support for the psychological parent relationship without falling into some of the same problems that that they that you can find in their work.
00:22:53:28 - 00:23:21:12
Unknown
I think it is quite the challenge. What I took from the work is that this is a fundamental conceptual of where the child is in our system of dealing with children, moving from almost the child is the creature, the parents, the justice McReynolds standard from now almost a little more than a hundred years ago, to entirely different system of looking at the world from the child's eyes almost which as a massive project.
00:23:21:12 - 00:24:00:33
Unknown
And I think you accomplished it. But I would love to know a little bit more about what that means in your minds. So I guess I'll, I'll start by and I actually look to an as sort of a beacon of this perspective in the law, and has been doing a lot of theorizing on child centered family law. I think it's sometimes in the area where I work, parentage people tend to have an assumption that it is parent centered, because the question is whether a particular person has the legal status of parents.
00:24:00:33 - 00:25:04:24
Unknown
And what I've tried to do is push towards an understanding of parentage that's more child centered. By focusing on recognition of the relationship that the child has with someone who's their parent, regardless of whether that person is a biological parent or even a legal parent, and that the law should actually track the parent child relationship. And so in the paper, in the article, we tried to elaborate that in the section on parentage by not arguing for a wholesale overturning of what our parentage frameworks look like, but instead offering a a concept that can provide a comprehensive approach to parentage that will lead to some important changes, but also provides different justifications for some of our
00:25:04:24 - 00:25:37:02
Unknown
existing laws. So, for instance, we don't say biological parents shouldn't be treated as legal parents. Instead, we say biological parents ordinarily should be treated as legal parents. But it's not because there is something special about the biological tie, but instead because people act on the fact that their biological parent and ordinarily form a parent child relationship. But there are going to be a lot of circumstances in which we wouldn't treat a biological parent as a parent.
00:25:37:02 - 00:26:03:35
Unknown
And that includes not just situations in which the person was a sperm donor and egg donor, but situations in which someone else has been functioning as the parent of that child. So there are too many cases out there in which another person is parenting. A child is the primary caregiver of that child, and then the biological parent who have been.
00:26:03:36 - 00:26:25:50
Unknown
And in some of these cases, it's after four years, five years, six years, ten years, 14 years, and a court judge shift custody to the biological parent because there are biological parent and a legal parent. And we are urging an approach that focuses on that child and that from that child's perspective, that biological parent is not their psychological parent.
00:26:25:52 - 00:26:57:12
Unknown
Their psychological parent is the person who has been parenting them. And we want an approach that actually treats that person as a parent and protects that relationship, because doing so protects the child interests. Yeah, I think that, you know, you do see in the legal writing the idea that, you know, biological parents, it does serve children's interests because they're the ones most likely to to care for children.
00:26:57:12 - 00:27:22:33
Unknown
And we we agree with that. But the transformational part of this paper, I think, has to do with something that you are getting at, Lee, which is we're looking we're coming at these issues. We're asking legal decision makers and lawmakers to come at these legal issues from the perspective of the child. And that's, I think, what Goldstein, Freud and Solnit did.
00:27:22:36 - 00:27:49:26
Unknown
They asked, you know, in a way, they were asking who is the parent from the child's perspective? And that's what we're doing in this paper. I mean, as Doug was saying, it's it's not who has sort of ownership rights in the child or Buddhist biology identifies the child who was a child, you know, experience as their parents. And so that's there's something quite I think there is something transformational about it.
00:27:49:28 - 00:28:21:52
Unknown
We don't we we don't cover the whole realm of law in this paper. We take really two doctrinal. We have two, two kind of sections. One is a section that's about kind of redistributive, like we're asking, you know, we sort of ask the question, how would resources in society be redistributed given given an emphasis on protecting the psychological parent relationship?
00:28:21:52 - 00:29:02:38
Unknown
But we also have a protective dimension to this principle, which is our parentage and custody sections, which looked at doctrine, how to how should the law grapple with sort of children's relationship to their parents when issues come up and, you know, the importance of protecting the psychological parent relationship, but we don't cover every possible issue. It's an invitation, really, to others to start, you know, to really explore what it would mean to make the psychological parent relationship the primary interest.
00:29:02:43 - 00:29:35:40
Unknown
So, well, I certainly hope that not only people, professors take up that that gantlet to write on this topic more, but also we're going to talk about some of the things you all mentioned. I really want to start with setting up the scheme. So how would you describe what psychological parenting and parenthood is and how would you describe it, in contrast to the best interest standard that I think everyone that's seen family law knows and maybe loves or doesn't love?
00:29:35:45 - 00:30:07:50
Unknown
I'll take a stab and then I'll let and refine what I have to say. So from our perspective, the psychological parent child relationship is the relationship that the child has with the person who is providing the child with consistent day to day care emotional support. It's the person that the child turns to for safety and security. And from the child's perspective.
00:30:07:55 - 00:30:46:48
Unknown
The status of that person in our legal system is not relevant. What's relevant is is that person, the person the child can depend on for care and safety and security? And is that person providing that care and nurturance in a consistent fashion? And that's the relationship that the science tells us is so critical to a child's development and a whole range of consequences flow from having what the researchers call a secure attachment to this parental figure.
00:30:46:52 - 00:31:40:45
Unknown
And so for us, that's a pretty clear guideline or principle around which to build law reform. And in contrast to the best interests of the child standard, which has scholars and activists have argued for decades, is indeterminate. It's something that decision makers can import their own values into. What I think is best for a child might be different than what you think is best for a child, and it allows a range of considerations to enter into the analysis that we think are not targeted primarily at what is required for this decision to be the best decision for this child.
00:31:40:45 - 00:51:09:21
Unknown
And that's focusing on and prioritizing and protecting that psychological parent child relationship. And so even if some people would agree with us that prioritizing the psychological parent relationship is in the best interest of.
00:51:09:26 - 01:29:53:32