Since 2005, family law practitioners, the trial courts and the appellate courts have grappled with the de facto parentage doctrine. This doctrine allows parental rights to be bestowed upon a non-parent (i.e., someone who is neither biologically related nor legally related through an adoption or other legal proceeding) if the non-parent can demonstrate that he or she has developed a parent-child bond with the child with the consent of the child's legal parent and without the expectation of being paid.
The doctrine was first adopted in Washington in the case of In re Parentage of L.B.,1 which involved a suit between two former lesbian partners over a child born to one of them via assisted reproduction. This was in an era prior to the radical expansion of marriage and parental rights to same-sex couples that we have witnessed over the last several years. In other words, the doctrine was originally adopted to provide an avenue to establish parentage to a very specific plaintiff - a woman who intended to be, and in all other respects was, a parent to a child born to her committed female partner - to fill a very specific "gap" in Washington's laws of parentage.
Washington now has a gender-neutral Uniform Parentage Act and legal same-sex marriage, which in combination provide the pathway to establish parentage that the L.B. plaintiff lacked. So, what purpose does the doctrine serve now? Put differently, who does the doctrine serve now?
The Supreme Court recently answered that question in In re Custody of B.M.H.2 and In re Custody of A.F.J.3 Critics of the Court's decisions in those cases might say that the answer is, at least in theory, "anyone."
The question before the Court in each case was whether the alleged de facto parent - one, a former step-parent, and the other, a former foster parent who had an on-again, off-again relationship with the child's mother - had standing to file a de facto case. In each case, the Court deemed that neither party was barred from asserting de facto status on a "categorical" basis. Instead, the Court endorsed a broad policy of permitting the trial courts to make determinations of de facto parentage on a case-by-case, fact-specific basis.
In doing so, it is fair to say that the doctrine has been unequivocally expanded. That expansion, say those advocating for a narrow interpretation or the complete abrogation of the doctrine (including the dissenting justices), has profound implications for biological/legal parents who have a constitutional right to care, custody and control of their children. Specifically, the expansion of the doctrine would seem to impact a parent's inherent authority to make custody decisions regarding the child.
The Court's answer to this constitutional concern was centered on the requirement that the putative de facto parent demonstrate that the biological/legal parent consented to and fostered the parent-child relationship: "By requiring proof that [the legal parent] fostered the parent-child relationship, the de facto parentage doctrine will properly balance [the alleged de facto parent's] interests in an adjudication of parentage against the deference we give natural parents."
Whether the consent factor is truly an adequate protection of a parent's right to make decisions about his or her child's custody is a subject worthy of ongoing discussion. While not explicit in the Court's opinions, it would seem that in both B.M.H. and A.F.J. the Court is promoting a broad, underlying policy of balancing the emotional, psychological, financial and physical interests of children against the parents' liberty interests, with the child's interests often coming out on top.
...login to read the rest of this article.