De Facto Parenthood

The reformers' latest unwholesome innovation in family law.
by Sara Butler Nardo
03/06/2006,

Eleven years ago, Page Britain gave birth to a baby girl, assisted by her partner of six years, Sue Ellen Carvin. Nine months before, Carvin had helped artificially inseminate Britain with sperm donated by a friend. Britain and Carvin raised the little girl together until their relationship ended just before the child's sixth birthday.

Then, Britain tried to prevent Carvin from seeing the child. Carvin went to court, petitioning for visitation rights despite having no legally recognized relationship to the child. In November, the Washington State Supreme Court ruled that Carvin does indeed have legal standing from which to seek visitation. To achieve this result, the court dipped into the magician's hat of common law (loosely defined) and pulled out a rabbit: de facto parenthood.

Washington is only the latest state to embrace this new concept. At least ten states, including California, Maine, Massachusetts, New Jersey, and Wisconsin, allow a person with no legal or biological relationship to a child to petition for "de facto" or "psychological" parent status on the basis of a relationship between the adult and child. The judge can award this legal status if he determines that the adult filled the function of a parent for a sufficient length of time. We are likely to see more courts take this step in the future. As long ago as 2000, the influential American Law Institute issued suggested guidelines for de facto parenthood in its Principles of the Law of Family Dissolution, cited in several of the rulings establishing de facto parenthood.

The advent of de facto parenthood has been hailed as a victory for gays and lesbians, who, it is argued, must be allowed to establish legal parenthood this way since they cannot do so through marriage. But judicially created and enforced de facto parenthood is not the only way to address the situation of gay and lesbian couples raising children; indeed, many of the states that have created de facto parenthood already allowed second-parent adoption to gay and lesbian couples, but couples who ended up in court had declined to take advantage of it.

And gays and lesbians are not the only ones seeking de facto parenthood; Youmans v. Ramos, one of the cases that defined de facto parenthood in Massachusetts, involved a dispute between 11-year-old Tamika's father and her aunt, who had raised Tamika while her father was away serving in the military. Nor will gays and lesbians be the only ones to suffer from the unintended consequences of creating a new class of parents, retroactively designated and detached from any foundation in biology or adoption.

Under the new regime of de facto parenthood, biological and adoptive parents, gay or straight, may find that they have unintentionally given third-party adults a legally enforceable right to their children after cohabiting or remarrying. The tests that courts have set up to determine de facto parenthood are supposed to take into account the intentions of any legal parents. But will judges really be able to tell whether a mother or father was "fostering a parent-like relationship" between, say, a new lover and a son or daughter or merely encouraging them to get along?

In cases of a subsequent marriage, when the child already has two legal parents, will both parents' attitudes toward their child's relationship with a step-parent be taken into consideration? Or can a parent's access to his or her child be reduced because of a de facto relationship over which he or she had no control? In principle there is no numerical limit to the number of de facto parents a child can have. Custody battles between two parents can get ugly enough--imagine custody battles among three or four.

While de facto parenthood allows a subsequent spouse or a live-in boyfriend or girlfriend to continue their relationship with a child even after their relationship with the child's legal parent ends, it also allows them to use the threat of suing their ex-partner for de facto parenthood. And there are new potential consequences for parents who invite a family member to live with them. Will grandma want to take her grandchild with her when she moves out?

While the courts have attempted to create objective criteria for de facto parenthood, the category remains far fuzzier than parenthood as traditionally defined. The Washington court, following Wisconsin's model, established a four-part test to be used by judges in determining whether a person has standing as a de facto parent:

(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.

Rather than answering a simple question--Does the adult have a biological or adoptive relationship to the child in question?--judges will award parenthood depending on whether the relationship appears sufficiently "parent-like," a notable expansion of state power in the realm of family life.

The courts have justified the creation of de facto parenthood by arguing it serves the best interests of children. In reality, however, it works at cross-purposes to the institution that most essentially serves children's interests--marriage. Marriage works precisely by binding together the various aspects of parenthood--the biological, legal, and psychological attachments, not to mention the financial and emotional interests, of two parents and their children--which de facto parenthood fragments. In reality, de facto parenthood serves adults more than children, as it continues adults' liberation from marriage, strengthening their ability to found or join a family however they wish, without marrying first, or ever.

This new circular definition of parenthood--a parent is a person who performs the function of a parent--is part of a larger trend in family law that sees the law as the creator of the family, rather than one of its many custodians. According to the new dispensation, the words we use to describe this most vital social institution--family, mother, father, marriage--do not correspond to natural relationships, but are mere labels that the state is free to apply as it sees fit.

In the case of the label "marriage," the proposed change that is currently in the air has been widely and loudly debated. The legal definition of "parent," meanwhile, is already quietly changing.

Sara Butler Nardo is a research associate at the Institute for American Values in New York.