Marriage as Gatekeeper: The Misguided Reliance on Marital Status Criteria to Determine Third‐Party Standing †

This essay examines the continued use of parental marital status as a gatekeeper to determine third‐party standing. Under the statutory law of about half the states, nonparents lack standing to seek contact with a child over parental objection if the child's parents are in an intact marriage. A typical statutory framework grants access to court only if a parent has died or the parents are divorced or never married. While such a framework may have intuitive appeal, case law reveals the illogical results it can produce. Moreover, the framework defines parental liberty based on marital status – an approach in tension, if not in direct conflict, with Troxel. At the same time, the framework disserves children's interests by ignoring their established relationships with third parties in determining standing. Alternative approaches proposed by the Uniform Law Commission and the American Law Institute, which impose a heightened burden of proof and require a showing of harm to the child if contact is denied, would give parental liberty a more even‐handed deference while also respecting the importance of children's established bonds.