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 second part of the series, we’ll take a look at how the Supreme Court dealt with the application of the de facto parentage doctrine in the context of a stepparent/stepchild relationship.

2010: In re Parentage of M.F.

In 2010, the Supreme Court addressed the applicability of de facto parent status to a stepparent in the case known as In re Parentage of M.F., 168 Wn.2d 528.  The history of M.F. is somewhat complicated: M.F.’s biological parents separated shortly after she was born in 1993. They divorced in 1995.  At that time, a parenting plan was entered which designated M.F.’s mother as her primary residential parent, but provided for M.F. to spend alternate weekends and some holidays with her father.  It is unclear whether M.F. actually had regular visitation with her biological father after her parents divorced.

M.F.’s mother had begun dating John Corbin when was M.F. was about 14 months old, (before she was officially divorced from M.F.’s biological father).  Corbin and M.F.’s mother married in 1995, the same year in which M.F.’s biological parents were divorced.  During their five year marriage, Corbin and M.F.’s mother had two additional sons; but they divorced in 2002.

The parenting plan in that case gave Corbin substantial visitation with the boys he had fathered with M.F.’s mother.  For about three years after the divorce, M.F. usually lived with Corbin at the same time as the two boys.  M.F. stopped seeing her stepfather shortly after Corbin filed a petition to modify the parenting plan which governed Corbin’s time with his sons.

In 2006, Corbin filed a petition to establish de facto parental status in respect of M.F., based on the factors set forth in the L.B. case.  M.F.’s mother filed a motion to dismiss the petition on the grounds that Corbin did not have a prima facie case for de facto parentage.  That motion was denied by the court, thereby giving preliminary approval to Corbin’s petition (pending a trial).  M.F.’s mother appealed.  The Court of Appeals reversed the trial court, and Corbin sought review by the Washington Supreme Court.

The Supreme Court ruled that Corbin could not be established as M.F.’s de facto parent because (1) M.F. already had two legal parents whose rights would be infringed upon if Corbin was deemed a de facto parent; and (2) because there was another legal avenue available to Corbin to attain custodial rights to M.F.

The Court clarified that in L.B.:

We created a common law method to establish parentage where, had the respondent been able to participate in traditional family formation, parentage would have or could have been established by statutory means. But here, the petitioner is a third-party to the two already existing parents, which places him in a very different position than the respondent in L.B.

In addition, the Court noted that Corbin already had a legal remedy available to him in the form of a petition for third party custody.  The Court pointed to is decision in the Allen case, in which a stepmother successfully sought to have primary custody of her stepson on the grounds that the stepson would suffer “actual detriment” if he were to live primarily with his father.  (You can read a previous article which discusses the Allen case in depth here.)

The standards for establishing third party or nonparental custody were later codified in RCW 26.10.  That statute permits any person other than a parent to become the primary custodian of a child, if neither of the child’s parents are “suitable custodians.”  The person seeking third party custody must show that the child will be harmed by continuing to reside with their parent(s), which is a much higher standard than the “best interests of the child” standard applicable in other child custody proceedings.

The M.F. case was a source of some confusion – some in the legal community read it to mean that a stepparent could never seek de facto parent status over a stepchild; others (including this author), read it to mean that a stepparent could not seek de facto parent status if the child already had two living legal parents.  Luckily, the case we’ll discuss in the final part of this series, cleared up much that confusion… at least for now.  Stay tuned.

…a very public divorce plea.

An as yet unidentified individual in Reading, England has chosen a very public medium for her one-item Christmas list.  Says the UK’s Daily Mail newspaper:

With just 12 days to go until Christmas ‘Jude’ decided to spread her own festive message by stringing up a banner alongside the M4 motorway proclaiming: ‘For Xmas Dan, Jude wants a divorce.’

Thousands of motorists blinked in amazement as they passed the huge white bedsheet, daubed with black and red paint, on the busy B-road on the outskirts of Reading, Berks.

Here’s hoping that “Dan” hasn’t already done his Christmas shopping… because this year’s gift may be a bit more expensive than he expected.

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.

* * *

In our next part of this series, we’ll take a look at the applicability of the de facto parent remedy to stepparents.

Can I Get An Annulment?


My wife and I got married a month ago.  While we were on our honeymoon, I discovered text messages on my wife’s phone which led me to suspect that she’d been unfaithful to me just days before our wedding.  I confronted her about it, and she admitted that she cheated on me for much of our 3 year relationship.  Since we got back from our disastrous honeymoon, I’ve been staying with friends and have no intentions of living with my “wife.”  I feel completely deceived by her, and that our wedding and marriage were a sham.

Is there any way I can have my marriage annulled?


Probably not.  Washington state law does provide for a marriage or registered domestic partnership to be declared “invalid“ by a court, but only under very narrow circumstances.  Those circumstances include:

  • When one of the parties is a minor – both parties to a marriage must be 18 or older at the time that the marriage ceremony is performed; however, the parties may “ratify” the marriage by continuing to reside together after the minor party reaches the age of 18;
  • When one of the parties is already married or in a domestic partnership - you can only be in one marriage or domestic partnership at a time so any previous marriage or domestic partnership must have been terminated by the death of the other spouse or a legal divorce;
  • When there are “reasons of consanguinity” - under Washington, persons who are closely related by blood cannot legally marry each other or become domestic partners;
  • When one of the parties lacked capacity to consent to the marriage or domestic partnership either due to mental incapacity or intoxication – like any contract, a marriage or domestic partnership can be voided if one of the parties was disabled by either a mental illness or intoxication to the point that he or she cannot understand the nature and consequences of the decision to marry.  Note that this type of invalid marriage can also be “ratified” if the spouses continue to live together after the incapacitated person attains the requisite capacity;
  • When one of the parties was coerced into the marriage by force, duress, or fraud involving the essentials of marriage – Washington courts apply a very strict evidence standard to prove force, duress or fraud in all cases, including allegations of an invalid marriage. The court will need to see “clear and convincing” evidence in order to making such a finding; this is a much more stringent standard than the “preponderance of the evidence” standard in other civil cases.   This type of invalid marriage can also be ratified by continued cohabitation after the alleged misconduct is discovered.
A sordid example of what kind of facts would constitute fraud or duress , as well as lack of capacity, can be found in the case Murphy v. Lint.  In that case, the Washington Supreme Court found that there was sufficient evidence that a cancer stricken woman’s consent to marry a man with whom she had had a casual dating relationship was obtained when she was significantly disabled by her illness, and also by both fraud and duress.

The court noted that the purported husband had systematically isolated the woman from her friends and family while she was dying of cancer.  In addition, the court found that the significant cognitive side effects caused by her illness deprived the woman of the capacity to consent to the marriage.  Indeed, one expert witness testified that  in reviewing the woman’s medical and other records, he “came very close to being absolutely certain that she could not understand in any way or comprehend what was happening [when she married the man in a Las Vegas wedding ceremony], let alone what the meaning or significance of that was.”

In short, it is only when a marriage or domestic partnership was formed in a way that violates  Washington law that a court will consider it null and void.  Most couples – even those whose marriages did not last through the honeymoon – have to seek a divorce to legally end their relationship.