Holding Out vs. De Facto, II

So as the titled suggests, this takes up from the last post.   I’ll assume you’ve read that.   I want to spend a bit more time (and a few more electrons) pondering the reasons for the differences between claiming parenthood via holding out and claiming parenthood via the de facto route.

Here’s the key distinction to keep in mind:  It seems easier to acquire parental status by holding out than by the de facto parent route.  The de facto route is more complicated and seems to require you to meet a higher standard.   Not to mention that de facto parentage requires the consent of the pre-existing parents while holding out doesn’t seem to.   What that means is that some people might satisfy the holding out standard but not the de facto standard.

One thing worth noting might be the history of these two competing routes to parentage.   Holding out is the older of the two.  (Please note that I am not a historian and have not recently researched this.   This means I could be wrong, though I don’t think I am.  I will cheerfully stand corrected if need be.)  

The holding out provision is somewhat akin to a common-law marriage doctrine.   If a man and a woman lived openly as husband and wife, doctrines of common law marriage might operate to create a legal marriage.   If a man lived with a woman and child and presented the child to the world as his, the law essentially confirmed his claim, even if the man and woman were not married.

Notice, too, that UPA section 204, which establishes the presumption of parenthood by holding out, is also where the provisions on parentage by marriage are set forth.   Holding out was (and is) the route to parenthood for men in unmarried couples.   This history explains something of why the provision is written in gendered terms–it was indeed for men.   (The provision pre-dates easy genetic testing.)

De facto parentage is a relative newcomer.   Many of the leading cases in which the de facto parent test is refined are second-parent lesbian mother cases, like this one.   One thing that means is that most of the de facto parents in these cases are women rather then me.  And the children in these cases already have one mother.  (So do many of the children in the holding out cases, of course.)

The de facto parent test is a fairly stringent one in part because courts see that recognition of a de facto parent can be seen to diminish the rights of the first parent.   (This rarely seems to concern courts in the holding out cases.)   Courts in de facto parents seem to be concerned about designing a test that will exclude the nanny or the piano teacher or the next door neighbor.  (Again, there is no similar concern with respect to holding out.)

While this history might be helfpul in understanding the how the two tests evolved so differently, it isn’t entirely satisfactory to me.  Why can’t the woman seeking de facto parent status instead claim parentage via the holding out provision?   Somehow the answer “because she is not a man” doesn’t seem terribly satisfying.


One response to “Holding Out vs. De Facto, II

  1. I would like to know where this test was at 6 months ago when a judge ordered that the babysitter could have temporary custody of my granddaughter. She was taken away April 18th and is still with the babysitter until the judge makes up his mind on whether she should come back home or grant the babysitter de facto custodian. All of this was brought about because my daughter was going to take her daughter on a bus trip to see her step-father. There were no allegations of abuse or neglect, just that she thought this was unsafe and that she had grown attached to my granddaughter. My family has been torn apart by this and there doesnt seem to be anything we can do but wait. We finally went to court Oct 14 for the final hearing and we are still awaiting the judges’ decision. The laws need to be changed to keep this from happening to other families.

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