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1133
Abstract
Stability is universally accepted as a central value in family law. Within the context of adult relationships, stability determines which relationships the law will recognize and support. Within the context of parent child relationships, stability determines who will be recognized as a parent, whose parental rights will be terminated by the state, and who, among fit parents, will receive custody. This Article challenges stability’s pride of place in family law, identifying three problems with the law’s use of stability.
First, stability is often used in a circular way. Lawmakers treat stability as a requirement—a trait to which the law responds—even while acknowledging that those same forms of stability are a consequence within the law’s power to produce. This circularity proves that stability is doing very little analytical work. Second, stability is indeterminate. It has multiple meanings that often come into conflict with no agreed-upon hierarchy to choose among them. Third, as a result of the first two problems, lawmakers’ prior views about relationships—like polyamorous relationships or same-sex relationships—and their assumptions about race and class will inevitably infect the determination of whether such relationships are stable and therefore worthy of legal protection.
Family law’s veneration of stability imperils already-marginalized family relationships. This Article proposes two reforms. Stability writ large should often be discarded in favor of specific markers—whether duration, financial security, psychological attachment, or others—that can be verified and weighed in light of desired policy outcomes. Scholars and lawmakers must also identify values beyond stability—such as fluidity, resilience, and satisfaction— to guide legal reforms and judicial decisionmaking.
Recommended Citation
Kaiponanea T. Matsumura Professor of Law,
The Illusion of Stability in Family Law,
78 Vanderbilt Law Review
1133
(2025)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol78/iss4/2