De Facto Parental Relationships

Several months ago, I wrote about the concept of equitable adoption, in which an adoption may be ruled by the courts to be valid although adoption proceedings were not filed or completed. <(>  Two recent cases from the Washington Supreme Court discuss a related concept, in which a parent-child relationship between two people may be recognized even though none of the usual means for establishing parentage apply.

In Washington, a de facto parent-child relationship requires five findings:

* That the biological or legal parent fostered the relationship;

* That the child and the proposed de facto parent lived together in one household;

* That the proposed de facto parent assumed parental obligations without expecting to be compensated;

* That the relationship continue long enough for the child to bond with the proposed de facto parent; and

* That the proposed de facto parent’s parental commitment be permanent, unequivocal, committed, and responsible.

The two new cases address questions of when the concept may apply.

In the first case, two women had a sporadic relationship. During one of the separations, one of the women became pregnant, and during the pregnancy, they reunited and agreed to parent the child together. Unfortunately, the biological mother had a drug problem, including relapses during the pregnancy and after the birth of the child. Eventually, the nonbiolgical mother called Child Protective Services, who removed the child. CPS and the court agreed with the biological mother’s request to place the child with the nonbiological mother on the condition she apply for a foster parent license. Over the next two years, the biological mother had a series of relapses, and the state eventually sought to have her parental rights terminated. The nonbiological mother responded by seeking to have her rights as a de facto parent recognized and to be allowed custodial or visitation rights under Washington’s nonparental rights law. The trial court found that the nonbiological mother had established that she was a de facto parent, but dismissed the nonparental rights petition because the biological parent had recovered to the point that her parental rights should not be terminated. The court ordered that parenting time be shared and both mothers share in decision making, but that the biological mother’s decision control in case of disagreement. Both mothers appealed, and the Court of Appeals affirmed.

Both mothers then asked the Supreme Court to review the case, and it chose to review only on the biological mother’s question, whether foster parents, or any other people in responsible roles established by a state statute, may qualify as de facto parents. The Supreme Court ruled first that there was no limitation of the de facto parentage concept to cases not otherwise covered by statute. It also noted that foster parents in most cases will not be able to prove that the biological or legal parent approved of a foster parent relationship because most foster parent placements are over the objections of the biological and legal parents, nor will most foster parents act without expecting compensation. On the other hand, the court ruled that in the rare cases that the biological or legal parent approves of a foster parent placement, and no compensation is sought by a foster parent, the possibility of a de facto parent-child relationship should remain open. It also decided that the trial court’s decision that the nonbiological mother had proved she was a de facto parent was correct in light of the evidence.

In the second case, the parents had a child out of wedlock and subsequently broke up. The mother then began another relationship and became pregnant, but the father of the second child died in an accident before the child was born. The father of the first child came to the mother’s emotional assistance, including participating in the birth of the second child, and they were subsequently married. When they divorced two years later, the divorce judgment only addressed parenting the first child, but over several years, they effectively parented the second child according to the same terms. The mother changed the second child’s last name to match the father of the first child’s, and they discussed adoption but chose not to pursue it because the second child would have lost survivor benefits from his biological father. Eventually, the mother decided to move about 50 miles away with the second child to pursue another relationship. The father of the first child responded by seeking to be declared a de facto parent and to claim nonparental rights. After a complicated set of rulings and motions for interim appellate review, the Court of Appeals ruled that the father of the second child had shown that he was a de facto parent of the child and that there was enough evidence to require a hearing to determine whether he also should be awarded nonparental rights.

The Supreme Court chose to review this decision on two points: whether the mother was not acting in the child’s best interests, which was required to allow a hearing on nonparental rights, and whether a former stepparent could seek de facto parental rights. It ruled that the mother’s desire to relocate in order to pursue a relationship that the father of the first child thought was unstable was not enough to show that the mother was unfit, which was required to pursue nonparental rights. More significantly, it ruled that nothing prevents a stepparent from forming a de facto parent-child relationship, despite a dissenting opinion arguing that it was not practical to distinguish a stepparent relationship dependent on marriage from a de facto parent-child relationship independent of the marriage.

These two cases increase the potential for recognition of de facto parent-child relationships in Washington. (Oregon appears to apply the de facto parent concept only in rare circumstances in which it would be unfair to allow the biological parent to deny it.) Parents who wish to encourage their partners to form relationships with their children but who are wary of a de facto relationship may want to consult lawyers to discuss means of protecting themselves from future claims. Potential de facto parents may want to consult lawyers to discuss what rights may have been formed in caring for children.

If you fall into one of these categories and want an opinion, you should be ready to discuss the relationship between the biological or legal parent and the proposed de facto parent, and the relationship between the child and the proposed de facto parent, with the lawyer. What was expected at the beginning, what has happened since, and how the child views the situation all will be important.


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