Washington courts will sometimes afford parental rights to individuals who are not legally related (by blood or adoption) to a child under a common law remedy known as “de facto parentage.” The circumstances in which a person may attain “de facto” parent status are limited, and the law of de facto parentage appears to still be somewhat in flux. In this three part series, we’ll take a look at the three cases that have shaped the law of de facto parentage thus far.
In the first part of this series, we’ll examine the first case which set out the standards for establishing de facto parental status, In re Parentage of L.B.
2005: Parentage of L.B.
The common law remedy of de facto parentage was first formulated by the Washington State Supreme Court in a 2005 case known as In re Parentage of L.B., 155 Wn.2d 679. In L.B., a long-term lesbian couple decided to have a baby, and one of the women became pregnant via donor sperm. The couple raised the child together for six years, until their relationship came to an end.
After the break-up, the biological mother – who was the only one of the two former partners with “legal rights” to the child under Washington law at the time - would not permit the non-biological mother to see the child. The non-biological mother petitioned the court for legal recognition of her relationship with the child. The trial court denied her request, and the non-biological mother appealed. The case made its way through the Court of Appeals (which found in favor of the non-biological mother), and on to the Supreme Court of Washington.
In its 2005 opinion, the Supreme Court adopted a four part test for determining whether an individual who does not have parental rights under Washington’s parentage statute is otherwise entitled to recognition 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.
The above factors were intended to limit de facto parent status to “those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental roles in the child’s life.”
Although neutral to the sexual orientation of the alleged de facto parent, the L.B. factors were considered to be the prevailing authority for establishment of parental rights for a non-biological parent in a same-sex relationship.
It is important to note, however, that the legal landscape for same-sex couples in Washington has drastically changed since the Supreme Court issued its opinion in L.B. In 2007, the first iteration of Washington’s registered domestic partnership act was signed into law. As a result, same-sex couples who register as domestic partners are now entitled to many of the same rights as married heterosexual couples.
Most recently, Washington’s parentage statute was amended to include provisions that afford a presumption of parental rights to domestic partners in certain circumstances, including when one of the partners gives birth to a child via assisted reproduction. Things could have been a lot less complicated for L.B. and L.B.’s parents had they the option of domestic partnership enjoyed by same sex couples today.
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In our next part of this series, we’ll take a look at the applicability of the de facto parent remedy to stepparents.
