What Role Remains for De Facto Parenthood?

Abstract

Imagine you and your two-year old child move in with your parents, and you rely on them to care for her while you work several jobs at odd hours. After several years, you get into a fight about parenting, move out, and limit their time with your child. Should the law treat them as equal legal parents and allow a judge to decide how much grandparent visitation will benefit your child? Legal doctrines with this effect now appear in the Uniform Parentage Act (2017), the Uniform Nonparent Custody and Visitation Act, and the Restatement of Children and the Law. Under these de facto parenthood provisions, a nonparent can become a legal parent if the existing parent allows her to reside with, care for, and develop a relationship parental in nature.

De facto parenthood is either unnecessary, unwise, or unconstitutional. Many courts adopted it to protect same-sex parents from discriminatory parentage statutes, but the new parentage presumptions and assisted reproduction provisions apply irrespective of gender or sexual orientation. De facto parenthood is often duplicative of rules about abandonment, guardianship, de facto custody, and stepparent adoption, except its broad parentage standard sometimes undermines their well-established formal limits. The doctrine’s only distinctive contribution concerns former co-residential caregivers. It empowers judges to decide whether it is best for a child to maintain ongoing relationships with a relative, cohabitant, or stepparent who helped care for the child alongside her parent. In these cases, de facto parenthood violates parents’ constitutional rights. These parents consented to help, not to transfer their parental rights. Little evidence suggests that limiting a child’s ongoing relationships with secondary caretakers is harmful. Although de facto parenthood was an essential bridge to protect children and parents from discriminatory parentage laws, the doctrine should have no ongoing role in contemporary parentage law.

Keywords: de facto parent, parents, children, parentage, custody, visitation