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.