Surveying the Legal Landscape for Queer Parents in the United States

In her new book, Courting Change: Queer Parents, Judges, and the Transformation of American Family Law, Kimberly D. Richman offers a sweeping and original examination of the development of the law governing queer families in the United States. Using tools of analysis forged from the insights of critical legal studies and feminist legal theory, she traces a path that, while neither smooth nor unwavering, has led to better legal protections for more queer parents and their children than at any other time in our history. After examining the reinforcing relationship between legal change and social change, Richman concludes that there is reason to anticipate further improvement.

In researching her book, Richman reviewed every published appellate court opinion involving a lesbian, gay, bisexual, or transgender parent issued between 1954 and 2004—316 in all. Both the dominant law and the nature of the legal subjects before the courts changed over this period.

In the earlier decades the typical queer parent's case involved a lesbian or a gay parent who had children from a previous heterosexual marriage. Ex-spouses faced off in court over custody and visitation of the children. Over time the dominant legal approach in these cases shifted from a per se presumption against custody and in favor of invasive restrictions on visitation to a more flexible (and indeterminate) nexus test. The nexus test turned on whether the particular parent's homosexuality could be shown to cause harm or create a risk of harm to the child. While this ill-defined standard left ample room for hostile judges to curtail the rights of queer parents, it also allowed for decisions affirming the fitness of a lesbian or gay parent where the judge was so inclined.

More recently, the growing acceptance of lesbian and gay couples and the availability of reproductive technologies produced a notable gayby boom. Accordingly, in the last fifteen years, the legal dockets Richman examined have been dominated by cases in which queer people claim access to parenthood, whether by adoption (as a primary or as a second parent) or through assisted reproduction, and cases arising from disputes between queer coparents.

Simply to have cataloged the decisions and traced the evolution of the law would have been an ambitious and admirable task, but Richman's book offers far more than a historical survey. The assembled materials are viewed through a critical lens to provide deeper understanding of how law changes and of the relationship between social change and legal change. This understanding is enhanced by Richman's reliance on interviews she conducted with judges, lawyers, and litigants.

Richman's analysis begins by establishing the frequently observed indeterminacy of family law: the result in family law is not necessarily determined by the facts or the law. Two different judges hearing similar cases can and often do reach starkly different conclusions. While indeterminacy is a feature of law generally, it plays a particularly central role in family law. To appreciate this, one has only to consider that the single most prominent legal test in family law requires a judge to determine "the best interests of the child."

To many this indeterminacy robs law in general, and perhaps family law particularly, of legitimacy. Surely it opens the way for judicial bias to affect a case's outcome. These are central tenets of critical legal studies. Richman adds the insights of feminist legal theory to those of critical legal studies in order to produce a much fuller and more textured consideration of legal indeterminacy. In her view, legal indeterminacy is, as her first chapter title suggests, a double-edged sword. Wielding an analysis forged from critical legal studies and feminism, Richman convincingly demonstrates that family law's indeterminacy can and sometimes has worked to the advantage of queer parents. In explicating how indeterminacy has benefited queer parents, Richman offers lawyers a way forward in the future.

The central chapters of Richman's book analyze closely the operation of family...