De Facto Parentage

Lutz Law Offices, P.S. Profile Image

Practice Areas: Child Custody, Child Support, Divorce, Family

In our ever changing society where blended families are more and more common, a question often asked from someone in the middle of a divorce or separation is:  “I was really close to my step kids.  Can I have visitation with them?”  In the not too distant past, the answer was almost always no.  However, a recent trend in the Washington courts changed that a bit to where the answer is now “maybe.”

In 2011, the Washington State Supreme Court addressed this issue.  In re the Custody of B.M.H.  In this case a woman and a man were in a relationship.  Later in the same year of that relationship the woman (“L.H.”) started a relationship with another man, bot engaged, and got pregnant.  During this relationship the father of the unborn child died.  The woman then resumed the relationship with the first partner she had (referred to as “M.H.”).  This partner became very involved with her pregnancy, was present when the child was born, participated in the delivery and, then, after the birth, married the mother.  (The child is referred to by initials, “B.M.H.”.)

Unfortunately the marriage did not last long.  They were divorced when the child was very young.  The couple had a child from “round 1” of their relationship and their divorce papers factored in that child, but not “B.M.H.”

Despite the divorce not mentioning B.M.H., M.H. spent significant time with B.M.H.  In fact, the mother changed B.M.H.’s name to the last name of M.H. and they discussed M.H. adopting B.M.H.  However, because B.M.H. was entitled o death benefits from the biological father, they decided not to do that.

In time, problems arose and L.H. tried to limit M.H.’s contact with the child. M.H. then started a court action to have parental rights with the child (stating that he was a “de facto parent” of B.M.H. based upon his involvement with the child over the years.  The Supreme Court agreed and stated that “[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.” In order to prevail, the stepparent must prove the following 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.

 

 

From the Author: De Facto Parentage

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