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This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois—the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley’s requirement that states prove parents unfit before taking custody of a child, several doctrines permitted states to do precisely that in the 1970s and 1980s. Those doctrines deem a fitness finding regarding one parent sufficient to deny the other parent custody, even without a hearing on their fitness. These doctrines were developed without wrestling with Stanley and are deeply gendered, especially because most non-resident and non-offending parents are fathers. How the law should address such parents is complicated, but Stanley ought to be the starting point. In contrast to doctrines ignoring Stanley in some child protection cases, the case had significant influence in private adoption law. One factor that explains this contrast is that adoption agencies were well-represented and had power to insist on legal reforms following Stanley.

Finally, this Article explores the legal, policy, and academic contexts in which Stanley was ignored and in which it now enjoys a resurgence. The Supreme Court decided Stanley at a time when academics did not widely study the role of unwed fathers, when policy-makers sought to reform the child protection system largely without reliance on constitutional law, when parents widely lacked lawyers to advocate for them in family court, and when children’s lawyers generally sided with state intervention. All four of those contextual elements have changed in intervening years, contributing to several recent important cases featuring a resurgence of Stanley


First published in NYU Review of Law and Social Change and reprinted with their permission.