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De Facto Parent Status

Posted Sunday, January 26, 2014 by John S. Palmer

A third party seeking custody of a child has to overcome the law’s deference to the child’s biological parents. However in Washington that deference can be eliminated if the person seeking custody can demonstrate they have acted as the child’s de facto parent.

Washington’s nonparental custody statute requires a petitioner seeking custody of someone else’s child to demonstrate that the child is either not living with his or her parents, or that neither parent is a suitable custodian. Before the petition can be heard on its merits, the court is required to hold a preliminary hearing to determine if there is adequate cause to permit the case to move forward. The Washington Supreme Court has interpreted this to mean that “the facts supporting the requested custody order must show adequate cause that the parent is unfit or that placing the child with the parent would result in actual detriment to the child’s growth and development.” (In re Custody of E.A.T.W., 2010).

This is a higher bar to meet than the “best interest of the child” standard used to resolve custody issues between two otherwise fit parents and is based on the constitutional principal that parents should be free to raise their children without governmental interference, absent some compelling reason for the state to intervene. Specifically, as stated by the U.S. Supreme Court in Troxel v. Granville (2000), the 14th amendment “provides heightened protection against government interference with certain fundamental rights and liberty interests” and the interest of parents in the care, custody, and control of their children “is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

However, in the groundbreaking 2005 case of In re Parentage of L.B., the Washington Supreme Court adopted the de facto parentage doctrine allowing a person who has acted as a “de facto parent” to stand on equal footing with a biological parent and permit custody to be decided solely based on the best interests of the child.

The court stated that de facto parent status is “limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life” and that to be recognized as such by the court, a petitioner must demonstrate that:

(1) the natural or legal parent consented to and fostered the parent-like relationship;

(2) the petitioner and the child lived together in the same household;

(3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and

(4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.

The petitioner in Parentage of L.B. was a woman who co-parented a child for 6 years with the child’s biological mother; the child was conceived during the relationship by artificial insemination. The court found the statutory scheme created for nonparental custody was silent with respect this this type of relationship, and adopted the de facto parentage doctrine to create an equitable remedy for the petitioner.

Since that case was decided, Washington courts have wrestled with the question of when to apply the doctrine, and whether it is still viable due to legislation enacted in 2011 that clarifies and expands the parentage rights of registered domestic partners and other non-traditional couples.

However, last November, the Washington Supreme Court issued a pair of cases making clear that the doctrine is still alive and well. In Custody of B.M.H. the court held that a former stepparent was entitled to invoke the doctrine, noting that it “is a flexible equitable remedy that complements legislative enactments where parent-child relationships arise in ways that are not contemplated in the statutory scheme.” The court also said that despite efforts to keep up with changes in the way families are created, the “legislature inevitably did not contemplate every conceivable family constellation, and drawing an arbitrary categorical bar based on an individual’s status as a stepparent or a former stepparent would preclude legitimate parent-child relationships from being adjudicated.” The court noted that the former stepfather was not alleging that the child’s mother was unfit in any way, which meant he could not sustain an action for third-party custody and would be left without a remedy if he were precluded from seeking de facto parent status.

In Custody of A.F.J., (decided on the same day as Parentage of B.M.H.), the Washington Supreme Court addressed whether an individual can acquire de facto parent status based partially on facts that arose while seeking to become the child’s foster parent. The court held that while “in most circumstances a foster parent will not be able to meet the criteria set forth in L.B., we find that foster parent status is not itself an absolute bar to establishing de facto parentage and that the court can consider facts that arose during a foster care placement.”

The court declined to impose any additional burden on a foster parent seeking recognition as a de facto parent:

We recognize that it would be highly disruptive to the foster care system and the State’s compelling interest in family reunification if, by virtue of a short term placement by the State with a stranger or even a relative who has not previously held a parental role, a foster parent could seek de facto parent status. But the first element that a petitioner must establish is that “the natural or legal parent consented to and fostered the parent-like relationship.” (Emphasis added by Court.) That element already limits de facto parentage to cases where the natural or legal parent has consented to and fostered the parent-like relationship. Given the realities of dependency and termination actions, it is the State that consents and fosters the parent-like relationship, not the natural or legal parent. Even in situations where the legal parent has previously fostered a relationship between the foster parent and the child, such as, for example, with an aunt, uncle, or cousin, such relationships will rarely, if ever, be parental in nature.

The court added that requiring a de facto parent to have “assumed obligations of parenthood without expectation of financial compensation” further limits the doctrine’s applicability to foster parents, who usually “assume their obligations with the expectation of some compensation.”

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