New Delaware Law for De Facto Parents

Here is a remarkable new law enacted in Delaware.   Credit goes to Professor Nancy Polikoff for catching it and she’s included a description of it’s operation on her blog.     The law may have been occasioned by a Delaware Supreme Court decision I discussed not so long ago.  

The law grants full legal status to those who are de facto parents.   (If you look back on the blog you’ll see lots of discussion of the de facto parent doctrine but I’ll do a quick summary.)   

De facto parents are those who act like parents for a sufficient period of time, with the consent of any existing parents.   This doctrine is particularly important to lesbian couples raising kids.  If one woman gives birth, she’s clearly a parent.  The other woman may secure legal recognition as a parent by adoption or by operation of presumptions related to the relationship with the first woman or, under the de facto parent, by taking on the role of parent.  

Some states have a strong de facto doctrines while others, including Delaware up until now, do not offer legal recognition to de facto parents.   I’m not aware of another statute as clear and direct as Delaware’s.  Notice, for example, that it is apparent that the legal status of the de facto parent is exactly the same as any other parent. 

It’s also noteworthy, as Professor Polikoff observes, that the statute applies to on-going cases.   This is clear from the legislation enacted to amend the statute.    It means that de facto parents who have been denied legal recognition in the past based on then-existing doctrine can seek recognition now.  The eariler denial of recognition cannot stand in their way. 

All in all it is quite extraordinary.  It bears a bit more consideration, no doubt, but it also qualifies in the category of “breaking news” and so I’ll leave it just there for now.

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5 responses to “New Delaware Law for De Facto Parents

  1. Hmmm…More questions than answers here…While it may have some reasons about gay/lesbian couples,I am sure it will create a mess in Delaware if heterosexual couples are placed.Let’s see a situation: a child can have a set of “legal” parents-for example a legal mother, a legal father and ten more ” legal” de facto fathers and mothers-BAH!

    • The number of parents you might end up with is often raised as a problem with a de facto parent test, but I’m not sure it really is likely to be a problem.

      A de facto parent is someone who really does play the role of parent to a child. I know children who might have as many as three and just possibly four people in that category. I’m thinking here of a two parent household, where the two parents have split and each has re-partnered. (It makes no difference if these are men or women.) If the child really spends substantial amounts of time in both households, then perhaps there are four parents. The critical thing to me is that the law recognize the reality of the child’s life rather than dictate that reality.

      Four, it seems to me, is practically the upper limit. There are only so many hours in the day. If the child is only an occasional visitor, the people in that household won’t be de facto parents.

      And just for clarity, in my world de facto parents are legal parents. So the child has four legal parents. And in your last sentence, you’re worried about a child with a dozen parents. I just don’t see that as a real worry.

  2. I am interested in your opinion-is it possible a mother to sue for child support both the legal father and the legal de facto mother?Who has to be obligated to support the child???

  3. “A de facto parent is someone who really does play the role of parent to a child… I’m thinking here of a two parent household, where the two parents have split and each has re-partnered…If the child is only an occasional visitor, the people in that household won’t be de facto parents.”
    It makes more sense for me.It is not clarifield in De law.Thus in my view de facto parent is a “legal” parent only if he/she is cohabiting with the parent.I can understand that a partner may be afforded with status as legal de facto parent after splitting but only if it is about /for example/ a lesbian couple, where one of the partners gave a birth after artificial insemination by unknown donor.

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