UC Irvine Law Review

“Out of choice, necessity, or a sense of family responsibility, it has been common for close relatives to draw together and participate in the duties and the satisfactions of a common home.”

—Moore v. City of East Cleveland1

All fifty states have adopted the “best interests of the child” standard governing initial child custody determinations. However, the wide judicial discretion accompanying this broad standard has resulted in disparate application across custody cases nationwide. These disparities are particularly prevalent in cases where children have a significant connection with extended family members or nonparent caregivers.

As of 2017, a third of American households with children relied on extended family for childcare assistance. This percentage is likely even higher given the uptick in multigenerational households during the COVID-19 pandemic. Multigenerational family living, once viewed primarily as a cultural niche, is growing across all racial groups. Now, nearly one-quarter of Americans aged twenty-five to thirty-four reside with parents or older relatives. Among those living in multigenerational households, over 70% report they reside with a child under eighteen. These statistics reflect the overall reality that today, less than half of all children live in a traditional two-married-parents nuclear family. Recent legislative proposals recognize the expansion of the nuclear family, granting legal rights and status to new categories of individuals. Despite this shift away from the traditional parent-child family structure, almost all statutory and judicially determined factors that govern state courts’ determination of the “best interests of the child” in custody cases only consider the relationship between biological parents and children.

This Article conducts a fifty-state survey of the current statutes and cases applying the “best interests of the child” standard in custody determinations. The survey results indicate that although every state and D.C. have adopted the “best interests of the child” standard, its application across cases is inconsistent, particularly in cases where a parent resides with extended family members or regularly seeks childcare assistance from extended family members. Based on the survey findings, this Article advances a three-pronged recommendation to increase consistency in these cases to meet the realities of expanding family structures: (1) adoption of mandatory, delineated statutory factors; (2) a requirement to make specific findings of fact as to each statutory factor; and (3) the addition of a factor considering the history and nature of the child’s relationship with any extended family members and nonparent caregivers.