De Facto Parentage Overview and Case Law Update

sadgirlThe De Facto Parentage area of law is a hotly contested issue currently.  The De Facto petition allows a party to bring an action for residential time with a non-biological child if they meet four (4) factors as stated in the case of In Re Parentage of LB, 89 P.3d 271 (2004); which are (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.

Further, LB defines a de facto parent as an adult who has fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life, with the consent of the legal parent in the same household, without expectation of financial compensation, and for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature

In LB, a same sex couple parented the child together during the time that they were romantically involved.  Upon separation, the non-biological parent filed a Petition for residential time and the Court ruled that she was the De Facto parent.

It has been argued that the De Facto standards set out in LB apply only to same sex couples only; however, in the case of In re the parentage of J.A.B.,191 P.3d 71 (WA 2008), the Court ruled otherwise.

JAB is a case litigated in the Court of Appeals by Tsai Law Company’s own Emily Tsai. In that case, a non-biological party, a man, filed a De Facto petition and a Non Parental Custody Petition.  His former partner, the child’s biological mother, had a four month old child from a former relationship with another man.  The biological father of that child was not involved in the child’s life and was aware that the Petitioning party helped raise the child along with the biological mother.  The Court ruled that the Petitioning party was the De Facto parent.

Further, the Court in JAB, differentiated between De Facto and Non Parental Custody actions stating that, “a party who meets the test in LB stands in legal parity to an otherwise legal parent and is vested with the same rights and responsibilities limited only by the best interests of the child.”  That Court further went on to state that the “Non Parental Custody status cannot provide an adequate remedy for one who meets the de facto criteria as the Non Parental Custody statute is temporary in nature until the an unfit parent becomes fit to care for the child.”

In other words, if you meet the De Facto factors, you have the same rights to parent a child as any biological parent does even though you do not have the same blood running through your veins.  Whereas, a Non Parental Custody action is an action to be filed when you have not necessarily been a parental figure in the child’s life, but, the biological parents are unfit or are providing a detrimental environment for the children and custody is expected to be temporary only.

Since JAB came out, there have been at least two (2) more significant cases that have recently been litigated. In addition, In Re Custody of BMH, 2013 Wash. LEXIS 944, states that a step parent is not barred from obtaining De Facto relief.  In that case, a stepfather filed a Petition for Non Parental Custody and De Facto claiming that he parented the child as his own since the biological father of the child passed away.  The Court ruled that he met the burden under the De Facto action.

Further In re Custody of AFJ, 2013 Wash. LEXIS 942 states that foster parent status does not bar consideration of De Facto status.  In that case, a foster parent filed  a De Facto petition because that foster parent and the mother agreed to raise the child together, to give the child their names, and held each other out as co-parents, did not expect compensation financially, and they lived together for 3 ½ years.  The court concluded that the foster parent was the De Facto parent.

You can see that the Courts are expanding the De Facto parental status. Step parents and even foster parents are now able to file Petitions as a De Facto parent and have the same rights as biological parents do.  This area of law is fairly new and is continuing to evolve.  If you believe you may have a claim as a De Facto parent, please feel free to call Tsai Law Company and speak to an experienced attorney about your claim.

A. Scott Marlow, Esquire