While courts may have traditionally favored genetics over the emotional and psychological bonds, an increasing number of jurisdictions have begun to shift that stance to better serve the child’s best interests. Though the consideration is far from universal, courts are taking note of the significant impact that maintaining or breaking those bonds can have. Quite simply, courts are recognizing that children may be better served when they remain with the people to whom they have formed close psychological and emotional bonds rather than given to others with whom they simply share a biological relationship.
Custody disputes can be intimidating. Non-biological parents who have already cared for the child for more than a year have had trouble being heard in court. Without legal standing, the deck has been stacked against them. Courts today, however, when deciding where best to place a child, are developing a vocabulary of their own in defining bonding. The following are a few key phrases and concepts that non-biological parents may find helpful in child custody litigation:
- Compelling state interest in the prevention of emotional harm to a child justifies interference with parent’s due process rights. In the Interest of E.L.M.C., P.3d 546 (Colo. App. 2004).
- Extraordinary circumstances must exist before any examination into the best interest of the child. Bennett v. Jeffreys, 356 N.E.2d 277 (N.Y. 1976)
- “[E]xamples of extraordinary circumstances … include … disruption of custody … attachment of child to the custodian … biological parent’s abdication of parental rights … and child’s poor relationship with the biological parent.” Matter of Banks v. Banks, 285 A.D.2d 686, 687 (N.Y. App. Div. 2001).
- “[A] non-parent who has a significant connection with the child has standing to assert a claim for custody.” Buness v. Gillen, 781 P.2d 985, 986 (Alaska 1989).
- “[A] psychological parent is one who, on a continuing, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child's psychological needs for a parent…” In re Clifford K., 217 W. Va. 625, 643 (W. Va. 2005).
- “the bond between the foster family and the child is a critical factor.” In re Interest of J.A., 42 P. 3d 215 (Kansas, 2002)
- Some other terms that appear repeatedly in Appellate Court decisions favoring bonding include “continuity of care,” “risks of transition,” “a father in the terms that matter most,” and “significant emotional bond.”
More detail is available in Bonding and the Case for Permanence (Kenny and Groves, 159-165.) A non-exhaustive list of other court decisions in favor of bonding is provided following the conclusion of this article.