What Constitutional Law Can Learn from the ALI Principles of Family Dissolution

Judged from the perspective of conventional family-privacy analysis, there is reason to doubt the constitutionality of some of the more adventurous child-custody provisions found in the ALI's new Principles of the Law of Family Dissolution. Some of those provisions, for instance, create entirely new categories of "parents" having no prior legal or biological tie to a child and permit these caregivers to claim custody against the wishes of a child's legal parents. Yet, this Article contends that a more nuanced understanding of the Constitution's regard for family would vindicate the ALI's approach. The main reason why the ALI's treatment of what current law calls non-parent caregivers scrapes up so hard against the conventional understanding of family privacy is that the ALI discerns shades of gray within the family that conventional fixations on tradition and categorization obscure. Conventional analysis, or at least the strain of it that predominates in the state courts, favors bright lines in defining the family recognized by the Constitution and the measure of protection afforded it. Sustaining the ALI's approach to custody, by contrast, depends upon the emergence in constitutional jurisprudence of a more sensitive appreciation of the diversity of family life and of proportionality in scrutinizing state incursions. The Supreme Court's most recent forays into family privacy give evidence that it may be coming to that view already.