Legal Recognition of De Facto Parents: Victory for Same-Sex Parents or Threat to Parental Autonomy
The LGBT community is celebrating two recent decisions from the highest courts in Maryland and New York recognizing non-biological “de facto parents” as legal parents. Slate and other media outlets have described these decisions as “overwhelming” victories for gay parents. Commentators also see these cases as part of the “ripple effect” of recognizing of marriage equality in Obergefell v. Hodges. After years of advocating for same-sex couples on a range of issues before both legislatures and courts, I am surprised at my reluctance to join the celebration. In questioning the wisdom of this trend, I tentatively and uncomfortably align myself with pro-marriage scholars and commentators who have long critiqued the recognition of de facto parenthood. I’m not pushing marriage but I think this new trend is unnecessary to protect same-sex families or other de facto parents and their children. I also worry that authorizing this kind of state intervention to overrule decisions of legal parents may have unintended consequences that should concern us all.
Maryland and New York join what is now a majority of states granting some or all parental rights to an adult who has acted in a parental role for some period of time but has not established legal parenthood through biology, adoption or marriage. Most states have also required that the relationship between the “de facto parent” and the child must be with the consent and encouragement of at least one legal parent. Both the New York and Maryland cases involved same-sex couples who had agreed to have a child together. The couples were unmarried at the time of the birth of their children, and the non-biological parents had not adopted the children. The relationship ends after some time in which both partners co-parented. After the break-up, the biological parents withheld access to the children and the conflicts ended up in court. Both the New York and Maryland courts reversed pre-Obergefell decisions and recognized “de facto parents.” Once recognized, de facto parents stand on equal footing with biological or adoptive parents in custody and visitation disputes.
Part of my skepticism about these decisions comes from questions about the continuing necessity of de facto parentage after Obergefell. Didn’t the Supreme Court’s establishment of marriage equality remove a major barrier to legal parenthood for same-sex couples, thereby making recognition of de facto parenthood less important? Indeed, one of the central arguments advanced by advocates and adopted by the Supreme Court was that allowing same-sex parents to establish families through marriage is essential to protect children. Justice Kennedy embraced these arguments in his majority opinion, finding that “Without the recognition, stability, and predictability marriage offers, [the children of same-sex parents] suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate children of same sex couples.”
I’m not joining the “marriage supremacy” folks; I’m just noting that decisions that establish the legal recognition of parentage without marriage (or biology or adoption) don’t seem to naturally flow from a decision that opens access to marriage to same-sex couples, in part, so that both parents can secure legal ties to their child. After Obergefell, same-sex couples should now have the benefit of marital presumptions and achieve legal parenthood by agreeing to conceive and raise a child together in the context of marriage. And, for those parents who choose not to marry, Windsor and Obergefell’s constitutional analysis should undermine any remaining state law barriers to applying existing parentage statutes to same sex couples or permitting second parent adoptions by non-biological parents. And if there are continuing barriers to applying the marital presumption or other parentage statutes to same-sex couples or to second parent adoptions by gay and lesbian partners, advocates should fight those battles rather than spreading the de facto parent doctrine.
So Obergefell made the fight for de facto parenthood less critical in securing the rights of LGBT parents. But what’s the harm of expanding the legal recognition of parentage? I worry about its impact on both parents and children, particularly poor parents who are already vulnerable to state overreaching. I am concerned about the erosion of parental autonomy when courts, upon a finding of de facto parenthood, can set the decisions of legal parents aside. Of course, some of the court opinions are drawn very narrowly. I’m comfortable with the court protecting the non-bio parent in the New York case by overruling the decision of the biological mother to exclude her former partner from their child’s life. Both parents had planned to conceive the child, raised the child together for two years and continued to co-parent after they broke up for another three years. New York, in fact, limits a finding of de facto parenthood to just these circumstances. A party seeking parental rights is only a de facto parent “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together.”
But other states have adopted broader definitions. For example, Maryland now recognizes de facto parenthood as long as the biological or adoptive parent consented to a parent-like relationship and the non-biological parent formed a bond with the child. In Kentucky, a “de facto custodian” of a child can seek custody if he or she is “the primary caregiver, has provided financial support and has resided with the child for at least six months, and the child is under three years of age.” The residency requirement goes up to one year if the child is over three. In Colorado, a third-party can stand on equal footing with a parent in the “allocation of parental responsibilities” when the third-party “has had the physical care of a child” for at least six months and petitions the court within six months after the care has ended.
This expansion of the legal definition of parenthood makes me think about how some of the low income mothers I have represented might have fared under these statutes. The mothers who, after traffic stops unearthed warrants related to old drug possession charges, left their children in the care of a grandparent or a friendly neighbor while serving their sentences. After they were released from jail six months later, they faced custody battles from the third parties who had taken care of their children. Before recognition of de facto parenthood, my clients were presumed to have the right to decide whom their children should visit or live with, absent unfitness or other extraordinary circumstances. After recognition of de facto parentage, the grandparent or neighbor would be on equal legal footing with the mother under a best interests analysis. I also fear for the non-custodial fathers who might now be squeezed out of their kids’ lives after their children’s mothers’ ex- spouses are recognized as de facto parents without the fathers’ consent or participation.
Finally, as someone who generally favors rules over discretion in most areas of family law, I worry about the uncertainty that will result from the broader, vague definitions of de facto parent. Will it make already contentious child access disputes even more protracted and expensive? Or, worse yet, will the better-financed de facto parent always prevail over poorer, unrepresented legal parents? There is also great uncertainty about the legal rights and obligations that flow from this kind of parentage. In most jurisdictions, de facto parents can seek custody and/or visitation under a best interests standard on equal footing with the legal parent. But what if this designation creates three or four legal parents? Are they all on the same legal footing? And what about the implications of this for financial obligations to the child? Does the de facto parent also have to pay child support? If there is a third, legal parent, are his or her child support obligations reduced when a de facto parent enters the picture? Vague standards result in unpredictability and that leads to more disputes involving children.
Of course, for the petitioners in many of these cases, marriage or even second parent adoptions weren’t options at the time of the conception or birth of their children. And access to lawyers for adoption or any family law conflict is always a challenge. But courts can now send a clear message to loving, de facto parents who want to be assured of continuing their relationships with their children. To fully protect yourself and your child, you need to affirmatively establish yourself as a legal parent—marry your co-parent, petition under parentage statutes and/or adopt your child. I may be missing a lot here but that seems like reasonable family policy.