The Psychological Parent Doctrine: A Solution to South Carolina’s Refusal to Provide Rights to Same-Sex Couples?
The Psychological Parent Doctrine: A Solution to South Carolina’s Refusal to Provide Rights to Same-Sex Couples?
Paul Rogers, 2 Charleston L. Rev. 911 (2008)
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In June 2006, the South Carolina Court of Appeals, for the first time by any South Carolina court, provided a psychological parent with visitation rights in Middleton v. Johnson. There, the South Carolina court implemented a four-prong test for determining psychological parenthood first created by the Wisconsin Supreme Court in In re H.S.H.-K. The court found that Mr. Middleton, the nonbiological father, satisfied the psychological parent test and awarded him visitation rights with the child over the biological mother’s objections. What is most fascinating about In re H.S.H.-K is that the Wisconsin Supreme Court enacted the psychological parent test as a basis for making a claim for visitation by a psychological parent who lost access to a child as a result of the dissolution of a same-sex relationship. However, Middleton fails to provide any discussion of the possible implications of individuals from failed same-sex relationships who may wish to make claims for visitation under the psychological parent doctrine. This absence is noteworthy because South Carolina does not recognize same-sex marriage, and as one of the nation’s most conservative states, will likely continue to withhold marital rights from homosexuals. This Note argues that as a result of Middleton, the South Carolina Court of Appeals may have inadvertently provided rights to those in same-sex relationships by adopting the psychological parent doctrine and allowing Middleton visitation rights.
This Note will first review the procedural history and rationale in Middleton. Next, it will discuss the utilization and effect of the psychological parent doctrine in South Carolina prior to Middleton, as well as the psychological parent tests employed by other jurisdictions. This Note will then analyze South Carolina’s psychological parent test. The final section will examine the implications that the psychological parent doctrine will have for parties of dissolved same-sex relationships who wish to assert visitation rights.