I figured I owed to to all the folks who disagree with me to cover this story, which is surely the worst case scenario for my point of view. (I’m generally fond of functional or de facto parent tests.)
The threat of a babysitter ousting a legal parent has always been one of the arguments against any kind of parentage analysis that takes account of function. And, as the article suggests, until now it’s been entirely hypothetical. No one had ever heard of a real case where it happened. But now we have.
Perhaps the most important thing to highlight is that we don’t actually know the real facts here. The babysitter says the child has lived exclusively with her since he was three days old (he is now two years old) and that he thinks of her and her husband as his only parents. If that’s true is rather a shocking situation, but perhaps the court is not wrong to protect the relationship between the babysitter and the child. It’s worth noting that the parents’ rights have not been terminated and the babysitter has not been recognized as a parent.
The parents assert that the babysitter has lied to the court about a number of things, though I’m not clear that they’ve provided a different version of the circumstances recited above.
It’s clear that when parties to a case lie they pervert justice. It’s not a measure of the soundness of law that it can be subverted by a determined attempt to mislead the court. It will be worth watching to see what happens as the case unfolds.