Family law cases as law reform litigation: unrecognized parents and the story of Alison D. v. Virginia M.

Although the gap between law and lived experience comes as no surprise to most people, the divergence is especially striking--and disturbing--in the area of family law. Legal training quickly reveals that love is not a foundational element of family law, yet it can still be jarring to find that love has little, if any, bearing on the contours of the legal family. Love, after all, does not account for who can and cannot marry. Nor does the past love of an unmarried couple trigger the protections of divorce should the couple separate.

When children are involved, we might be especially inclined to think that love should carry some weight in determining whether a parent-child relationship will be recognized. Yet even here, again, love is often not relevant to the analysis. While an adult might feel like a parent, be treated like a parent, and be "Mom" or "Dad" to the child, in many states that adult will not actually be a parent within the law, absent adoption or biological parentage. For families in those states, a non-legal parent may have no legal recourse if a couple separates and the "legal" parent bars him or her from seeing the child. As a matter of law, the non-legal parent and child in this situation are no closer than strangers.

Ironically, given the law's disinterest in love, the chief hope for the non-legal parent to regain contact with his or her child lies in showing the court the love that once defined the family and continues to define the parent-child relationship. Put another way, non-legal parents must persuade the court to see the family as it once was. if the court does not understand that the adults and children before it once functioned as a family, claims that the parent-child relationship should survive the parents' breakup have little chance of success.

The case of Alison D. v. Virginia M. (1) provides an important opportunity to examine this complex relationship between family life and family law. Although it was decided in the early 1990s, the case and surrounding advocacy present questions that remain in play today, and the decision represents one significant point on the spectrum of family recognition decisions that continue to shape the lives of many families. The case arose after Alison's former partner, Virginia, barred Alison from seeing the child whom the two women had been raising together. Despite many efforts by Alison's lawyers to tell the family's story during nearly three and a half years of litigation, New York's highest court held in 1991 that Alison, as a "biological stranger" to her son, (2) lacked standing to petition the court for visitation. (3) Simply put, the New York Court of Appeals found that Alison, despite being called "mommy" and having "nurtured a close and loving relationship with the child," (4) was not her son's parent in the eyes of the law.

To explore the law-life relationship, this Article presents the story of Alison D. on three levels. The first is the personal story of the parties to the case--or at least the little we can glean from court opinions and other published accounts; the remainder is under seal, as is traditional with family law cases in New York. (5) The second tells of lawyering for social change within the confines of family law and examines the strategies used to present Alison's family life within a legal framework that denied her the opportunity to tell her story. The third level takes the long view, looking both at the many legal changes in the nearly two decades since the case was decided and at the decision's continued force despite those changes. (6)

At each of these levels, the question was not whether Alison was a good parent but rather whether the courts would permit Alison to show that she was a parent at all. The account here thus takes as true the facts about the relationship between Alison and her son that were alleged by Alison and largely uncontested by Virginia, (7) and then focuses on the challenges presented as Alison sought to translate her life experience into legal protection.

This multi-tiered approach to the telling of Alison D. highlights, in turn, the core conceptual question for the enterprise of family law that runs through the layers of the story: How closely should family law correspond to the realities of families' lives? This Article aims not to answer that question directly but rather to show how the question shaped the parties' interactions and strategies, as well as the decision's impact on the development of family recognition law in New York and elsewhere.