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32 Rutgers L.J. 733 (2000-2001)


The Troxel grandparent-visitation case that frames this symposium, the Washington statute included in Troxel, the mercifully completed odyssey of Cuban-born Elian Gonzalez, and the "right to die" case of Hugh Finn all illustrate both the fervor with which the broader community justifies its involvement with families and the extremes to which this involvement can spread. Using constitutional language, advocates point out the rights of extended family members to continue or strengthen ties to children, whether adult or minor. On the other side, parents and spouses claim their own rights not to have outsiders second-guess or interfere with their decisions.

Though many writings about marriage and parenting extol the family's virtues as a building block of community and society, very few, especially in the legal context, look at the relationships from inside out. My thesis here is that good family relationships very much need larger communities to begin them right, support them, and keep them strong. I will argue, however, that there are limits to the usefulness of outsider involvement-that empowering outsiders has its own costs. In legal terms, we reach these limits when multiple third party claimants assert rights to access spouses and children in ways that substantially conflict with the autonomy families need to function well, not primarily because of the substantive rights of parents or spouses, but because of their effect upon the ability to parent and to live within a functioning marriage.


Reprinted with permission of Rutgers Law Journal.



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