I promised a follow-up to yesterday’s post and here it is. If you haven’t read yesterday’s, then you should go back and do that now. You can read about the case here or you can read the actual opinion of the court.
Remember that SY and SB were in a long-term lesbian relationship, but SY was a colonel in the US Air Force and so the relationship was something of a secret. SB adopted two children. When the women split up, SB claimed that SY wasn’t a parent and hence had no right to see the children. Yesterday I noted that SB argued (unsuccessfully) that since SY hadn’t tried to adopt the children herself and that this should count against her. The court rejected this argument, in part because an effort to adopt would have necessitated disclosing the relationship between SY and SB, which might well have ended SY’s military service. (For more on this, see yesterday’s post.)
Once you decide that the failure to adopt isn’t disqualifying you get to what is really a more important question: On what basis can SY claim parentage. The court’s discussion here is interesting.
I’ve written quite a bit about the idea of a functional parent test on this blog. (If you troll around using that tag you’ll find things. It’s also sometimes called a de facto parent test.) The de facto parent test has primarily been forged in cases involving disputes between lesbian co-parents, though it is in theory gender neutral. If you look at the general elements the test requires, you’ll see it is hard to be a de facto parent–you have to do a lot to make the grade. Notably, someone who fulfilled the breadwinner role–a role traditionally occupied by men–probably couldn’t make it as a de facto parent.
This issue rarely comes up, however, because there has been a different route by which men can claim what amounts to de facto parent status. It’s parentage by virture of “holding out.” The idea here is that if you take a child into your home and present it to all the world as your child and help support it, then it is presumed to be your child. I guess the idea is that no man would do such things unless it was “his” child (whatever that means.) Again, I’ve written about holding out.
The parallel evolutions of these doctrines resulted in a situation where it seemed that there was one test (holding out) for men claiming parentage by virtue of performance and a different (and more difficult) test for women claiming parentage on the same basis. Given our general commitment to gender equity, this ought to seem problematic.
Holding out is often incorporated in state statutory schemes, and you can see the CA holding out provision here. Note that by its terms it applies to men. But then go and look at the court’s footnote 9 (bottom of page 12), which will take you to this provision. “Insofar as practicable” CA will treat women and men similarly. And on this basis, SY is presumed to be a parent if she held the child out as is required by the CA statute. And, the court concludes, the trial judge correctly found that she did.
It’s a long and rather twisty road, but it seems to me that it leads to the right place. For what it is worth, Washington has actually amended its statutes to make it clear that you’d use the holding out provisions in this case. (Look at RCW 26.26.116(2).) Either way, it seems reasonable to me to use the same standard for parentage for men and women in cases like these, and that’s just what the court in SY vs. SB has done.