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.