Paper Courts and Parental Rights: Balancing Access, Agency, and Due Process

\\jciprod01\productn\H\HLC\54-2\HLC203.txt unknown Seq: 1 21-JUN-19 10:32 Paper Courts and Parental Rights: Balancing Access, Agency, and Due Process Tianna N. Gibbs* Across the country, state legislatures have created out-of-court, form-based processes that replace the adjudicative process in traditional courts. In the family law context, these out-of-court forms allocate fundamental parental rights, principally for unmarried and single parents, who disproportionately have low incomes and are people of color. In most states, instead of presenting their re- quests to a judge in a courtroom, parents can sign legal forms in a hospital room to establish paternity or at their kitchen table to assign their custodial rights to a third party. When a child is born to an unmarried mother, as 40% of children are, the man in a different-sex couple can sign a voluntary acknowledgement of paternity form (VAP) to establish that he is the child’s father. When a single parent experiences a destabilizing life event, such as eviction or incar- ceration, the parent can delegate parental rights to a non-parent by executing a custodial power of attorney form. And when a single parent suffers from a debilitating illness, the parent can sign a form to designate a standby guardian to take care of the child when the parent is no longer able to fulfill caretaking duties. In each context, there is no court filing, no judge, no lawyer, and no courtroom. Signatures on a form carry the same weight as adjudication in court, conferring the legal right and responsibility to care for a child on an individual. This Article calls these out-of-court, form-based processes “paper courts,” and argues that, in the family law context, they play a critical but unappreciated role in determining parental rights. While paper courts can be a welcome addition to family law—increasing access to justice and parental agency—paper courts also raise serious concerns about informed consent and procedural due process. This Article discusses the challenges of balancing the often-competing interests in access, agency, and due process in the designation of parental rights in paper courts. To balance these concerns, this Article proposes solutions that strengthen informed consent and procedural due process protections while preserving ac- cessibility and parental agency. * Assistant Professor of Law, The University of the District of Columbia David A. Clarke School of Law (UDC Law School), Co-Director of the General Practice Clinic, J.D. 2008, Yale Law School, B.A. 2004, Stanford University. I am especially grateful for insight, feedback, encouragement, and mentorship from Clare Huntington and Stacy Brustin. I also appreciate comments from Albertina Antognini, Richard C. Chen, Marisa Cianciarulo, Norrinda Brown Hayat, Margaret E. Johnson, Courtney G. Joslin, Kaiponanea Matsumura, Jessica Dixon Weaver, and attendees at the 2018 Family Law Scholars and Teachers Conference, UDC Law School Faculty Development Workshop, Mid-Atlantic Clinical Writer’s Workshop, and Chap- man School of Law Junior Faculty Works-in-Progress Conference. I thank Andrew G. Fergu- son and Clare Huntington for assistance with developing the concept of paper courts, Matthew I. Fraidin for help with examples of paper courts, and UDC Law School librarian Lachelle Smith for reference support. I thank my UDC Law School colleagues LaShanda Taylor Ad- ams, Lindsay M. Harris, Twinette L. Johnson, Marcy Karin, Philip Lee, Faith Mullen, Lauren Onkeles-Klein, Saleema Snow, and Susan L. Waysdorf for listening to my ideas, writing with me, giving me feedback, and providing encouragement. I also thank UDC for providing re- search funding. I greatly appreciate the outstanding editorial support provided by the Harvard Civil Rights-Civil Liberties Law Review. Finally, I thank my husband, Kenneth Gibbs, Jr., for his unending support and encouragement. \\jciprod01\productn\H\HLC\54-2\HLC203.txt unknown Seq: 2 21-JUN-19 10:32 550 Harvard Civil Rights-Civil Liberties Law Review [Vol. 54 Much of family law scholarship addresses the allocation of parental rights in the context of court procedures and court-adjacent processes such as settlement negotiations and mediation. But this scholarship overlooks the form-based processes taking place completely out of court that structure the lives of families with the same legal authority as adjudication in court. By surfacing and analyz- ing this practice, this Article fills a significant gap in the account of family law and makes both a descriptive and normative contribution to the family law literature. TABLE OF CONTENTS INTRODUCTION .................................................. 551 R I. PAPER COURTS DEFINED ................................. 558 R II. PARENTAL RIGHTS REVIEWED ............................. 560 R A. Parental Recognition and Parental Authority .......... 560 R 1. Unequal Parental Recognition .................... 561 R 2. Finite Parental Recognition ...................... 564 R 3. Fundamental Parental Authority .................. 565 R 4. Interdependent Parental Authority ................ 566 R B. Parental Rights, Parental Responsibilities, and Children’s Interests .................................. 568 R III. PAPER COURTS IN PRACTICE .............................. 569 R A. Voluntary Acknowledgment of Paternity ............... 569 R B. Custodial Power of Attorney (or Delegation of Parental Powers) ............................................. 579 R C. Standby Guardianship Designation ................... 586 R IV. COMPETING INTERESTS ................................... 589 R A. Promoting Procedural Access, But Lacking Substantive Access .............................................. 590 R B. Maximizing Parental Agency ......................... 596 R C. Compromising Procedural Due Process ............... 599 R V. A PATH FORWARD: BALANCING COMPETING INTERESTS .... 600 R A. Promoting Informed Consent ......................... 601 R B. Providing Adequate Procedural Due Process .......... 603 R 1. Due Process and Voluntary Acknowledgement of Paternity ........................................ 604 R 2. Due Process, Custodial Power of Attorney, and Standby Guardianship ........................... 609 R C. Addressing Counterarguments ........................ 614 R CONCLUSION .................................................... 617 R APPENDIX A: DISTRICT OF COLUMBIA ACKNOWLEDGEMENT OF PATERNITY .............................................. 618 R APPENDIX B: DISTRICT OF COLUMBIA CUSTODIAL POWER OF ATTORNEY .............................................. 620 R APPENDIX C: DISTRICT OF COLUMBIA STANDBY GUARDIANSHIP DESIGNATION ............................................ 624 R \\jciprod01\productn\H\HLC\54-2\HLC203.txt unknown Seq: 3 21-JUN-19 10:32 2019] Paper Courts and Parental Rights 551 INTRODUCTION A putative father stands in a hospital room holding a voluntary acknowledgment of paternity form. A single mother facing eviction sits at her kitchen table reading a custodial power of attorney form. A single mother with a debilitating chronic illness lies in her bed while signing a form to designate a standby guardian for her child. Each person is in court—a paper court. There is no court filing, no judge, no lawyer, and no courtroom. Each person’s signature on a form will establish or assign parental rights, with the same legal weight as a final court order. Across the country, state legislatures have created out-of-court, form- based processes that replace adjudication in court proceedings. This Article calls these processes “paper courts.” Although paper courts can exist in any area of the law, this Article focuses on the proliferation of paper courts in the family law context, namely use of the voluntary acknowledgment of paternity (VAP), custodial power of attorney, and standby guardianship designation. Legal scholarship draws a dichotomy between private ordering and adjudication in court.1 Paper courts exist as a hybrid, similar to but distinct from these categories. Private ordering involves regulation by private actors, rather than public actors, that the state enforces.2 In the family law context, private ordering occurs when “the parties set the terms of their relationship rather than the terms being set by the government (or some other external source).”3 Like private ordering and in contrast to court adjudication, paper courts allow participants to chart their own course about significant legal matters such as the allocation of parental rights. Rather than resolving dis- putes like traditional courts, paper courts document, ratify, and legitimize the consent of signatories of forms. Conversely, similar to court adjudication but unlike private ordering, paper courts issue determinations that have the same legal consequence as a final order entered by a judge after a trial on the merits. In the family law arena, paper courts allocate parental rights. A VAP designates a child’s legal parents and a custodial power of attorney or standby guardianship designation permits parents to delegate their authority 1 See, e.g., Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950, 973–79 (1979) (examining the impact of court adjudication on negotiations in divorce cases); Barak D. Richman, Firms, Courts, and Reputa- tion Mechanisms: Towards A Positive Theory of Private Ordering, 104 COLUM. L. REV. 2328, 2338–48 (2004) (examining the use of public versus private ordering for the enforcement of commercial agreements);

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