Thursday, September 11, 2008

New Case Rejects Narrowest View of Who Can Be a De Facto Parent

A new case from division one, Parentage of J.A.B., Docket No. 59165-7, offers some hope for children who are living with their stepparents or other relatives and would like to remain there.

In my practice, I often represent grandparents, step-parents, or other relatives who are caring for young children because the parents are unsuitable. These kinds of clients have two legal hooks to gain legal custody of the children: a petition for custody under the non-parental custody statute or a finding by a court of competent jurisdiction that they are the child’s de facto parents.

The non-parental custody statute is unsatisfactory to most clients for two reasons. First, it is an uphill battle. To get legal custody of the children, the client must prove that the natural / legal parent is either unfit or that placing the children with the natural / legal parent would cause actual detriment to the children’s growth and development. In other words, the parents must be seriously messed up: schizophrenic, meth. users, that kind of thing. In the alternative, the children must be seriously messed up, such that the non-parents are the only party that can reasonably be expected to help them. For example, in one case, the step-mother, in a contest with the father, got the child because the child was deaf, the step-mother was proficient in sign language, and the father was mediocre at best.

Also, even if the client does get custody, the end result is of questionable value. In a case that I am currently appealing, the judge concluded that a non-parental custody decree was tantamount to terminating the parental rights of the parent. However, in this new case that I am blogging, the court concluded that the third-party decree only offers a temporary and uncertain right to custody.

The de facto parent hook is also unsatisfactory to most clients because the principle is undeveloped and it isn’t obvious who qualifies and who doesn’t. L.B., the case that first recognized the de facto parent cause of action, established a 4-part test for determining whether someone is a de facto parent: 1) the natural/legal parent consented to and fostered the development of the parent-like relationship, 2) the petitioner and child lived together in the same household, 3) the petitioner assumed the obligations of parenthood without expectation of financial compensation, 4) the petitioner has been the parental role long enough to have established a bonded, dependent, parent-like relationship.

The issues I have litigated regarding this test are: 1) what constitutes consent? 2) are child support payments financial compensation? Consent is the big one. In the cases I have had or read about, the parent dumps off the children with the grandparents and essentially abandons them. Is abandonment consent? The answer is usually no. Apparently the courts believe that it is o.k. for a parent to remove himself or herself from the child’s life for months or even years, and then come back and gain custody. By the way, I think this is terrible for children.

This case doesn’t really address consent because it was pretty obvious that the mother was unfit (severe mental illness) and that the father consented (he signed the consent to terminate parental rights and to adopt, but then revoked his consent. The child lived with the step-father from 4 mos. Until age 7.) This case does address financial compensation, finding that the child support payments were expended for the benefit of the child, not to compensate the step father.

The other argument that tends to arise in de facto parentage cases is who is even eligible to take the test in the first place. I think that any person is eligible to take the test. If the children are living with you, regardless of how the children got there, you should be able to protect that relationship by a finding of de facto parenthood. The other side tries to limit potential test takers to gays and lesbians who had the child via artificial insemination.

This says that the test is not limited to people who cannot legally marry, e.g. gays and lesbians, but it also seems to suggest that the test is only available to people who have co-habitated, and then split up, are eligible to take the test. Factually, this means that de facto parent status is probably only available to gays and lesbians who have a child together, either by adoption or artificial insemination, and then split up, parent and step-parent who marry and then divorce, or hetero sexual couples who never marry and then split up.

I don’t think this is good for children because it excludes a whole category of people who step up to the plate and care for children while the parents do drugs or whatever. However, I think this is where the law of de facto parentage is heading.

Ultimately what needs to happen is that children need to be given a bill of rights. Children should have a fundamental right to remain in a stable and secure home where they are loved by and bonded to their primary caregivers, regardless of the legal or blood relationship between them.

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