In this three-part series, we’re examining the Washington common law remedy of “de facto parentage,” which will sometimes afford parental rights to individuals who are not legally considered parents to a child, if they can prove that they have – in the words of the Washington Supreme Court – “fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.”
In this third, and final, part of the series, we’ll examine an opinion recently issued by the Washington Court of Appeals that clarifies the application of the doctrine to step-parents.
2011: In re the Custody of B.M.H.
Like the M.F. case, the facts of B.M.H. are somewhat complex:
Background: In 1993, a woman, dubbed “LH” by the court, and a man, referred to as “MH” by the court, started a romantic relationship. In 1995, LH and MH had a child, “CH.” In 1998, LH and MH broke up. That same year, LH began a new relationship, got engaged, and became pregnant. In early 1999, her fiance – the father of her unborn child – died in a workplace accident.
MH and LH rekindled their relationship at some point after the death of LH’s fiance. MH became very involved in LH’s pregnancy. He was present when the child, “BMH” was born (he even cut BMH’s umbilical cord). Shortly after BMH was born, LH and MH got married. But, their marriage was short-lived and LH and MH were divorced in 2001.
The final parenting plan entered in their divorce contained a residential schedule for CH (the child that LH and MH had in 1995 during ‘Round 1′ of their relationship), but did not address BMH. However, both CH and BMH spent substantial amounts of time with MH in the years after the divorce. Indeed, both LH and MH acted as though MH was BMH’s father throughout BMH’s life.
For example, in 2002, and after the divorce, LH changed BMH’s last name to MH’s last name. In 2008, MH and LH discussed having BMH adopted by MH, but decided against it due to to the fact that BMH was entitled certain death benefits from his biological father’s estate; those benefits would be terminated if BMH became the legal child of MH. In addition, MH had regular visits with BMH, usually at the same time he had with CH.
However, the parties had periods of conflict over BMH’s relationship with MH. Problems always arose, MH contended, whenever LH began new relationships. According to MH, LH had “multiple and very short-term relationships with other men and frequently during those times she has on occasion tried to limit my involvement with [BMH].”
Indeed, it appears that LH had a rather chaotic personal life that included another, very brief, marriage, and numerous other short-lived romantic relationships.
In 2009, CH moved in with MH, while BMH stayed with his mother. MH soon learned that LH was planning to move BMH to Vancouver, BC so that they could live with LH’s newest boyfriend.
De Facto Parentage Petition. In February of 2009, MH filed a petition for establishment of de facto parentage, of BMH*. He argued that the move would disrupt BMH’s life by taking him out of the only school he’d ever attended. He also argued that the mother was unstable and that her frequent short relationships with various men were damaging to BMH.
The court appointed a guardian ad litem to investigate and report on an appropriate parenting plan for BMH, and ordered LH to keep BMH in his current school until the report was released. The court also ordered that BMH continue to have time with MH on alternating weekends.
The court later entered an order in which it found that MH had established a prima facie case for de facto parentage. LH appealed by filing a revision motion. Before the hearing on that motion, the Washington Supreme Court issued its ruling in the M.F. case. The court proceeded to grant the mother’s revision motion, holding that the M.F. case barred a stepparent from petitioning for de facto parent status.
Now it was MH’s turn to appeal, and the case went on to the Washington Court of Appeals.
The Court of Appeals issued its opinion on December 6, 2011, and found that MH could be considered BMH’s de facto parent. The court noted that the M.F. decision was subject to two interpretations.
The first interpretation was that M.F. stood for the proposition that a stepparent could never be a de facto parent.
The second interpretation was that a stepparent, or former stepparent, could not be a de facto parent to a child who has two existing, fit parents.
The court adopted the second interpretation, and found that because BMH had only one living biological parent (LH) when MH stepped in as his other parental figure, MH had a case for de facto parent status. The court concluded as follows:
[W]here, as here, a child has only one existing parent when a former stepparent enters the child’s life, the former stepparent may assert a de facto parentage.
The court then sent the case back to the Superior Court for a factual determination regarding whether MH’s case met the factors set forth in L.B.
The B.M.H. case has clarified the law of de facto parentage with respect to stepparents for now. To summarize, a stepparent may be able to attain de facto parent status if the child at issue has only one living parent, and if the stepparent can prove the L.B. factors:
(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.
And, of course, under L.B., de facto parent status may also be established by a non-biological parent after the break up of committed but unmarried relationship between persons of the same sex. However, with Washington having recently legalized same-sex marriage, establishing parental status in the context of a same sex relationship may become much less complicated (assuming that a same sex couple chooses to form their family bond through marriage).
It may well be that we’ll soon see another development in the evolution of the de facto parent remedy. We’ll be sure to update accordingly.
*MH also petitioned for other relief, including non-parental custody of BMH, but for simplicity’s sake, we discuss only the de facto parentage action.