Still playing catch up here, but this discussion sort of ties back to the one about Don’t Ask/Don’t Tell and holding out from the last few days. There’s a recent Washington opinion that looks at interesting questions about step-parents and de facto parents.
It’s important to know at the outset that WA has a strong de facto parent doctrine. The doctrine was established in In Re LB, a case between lesbian co-parents. While it isn’t easy to meet the standard for de facto parent, if you do meet it, then you get parental rights in WA.
It’s unremarkable that WA also has step-parents–a step-parent being the new partner of a parent. Step-parents in WA, as in most places, have pretty limited rights. During the relationship with the parent they may have rights of in loco parentis (to act as a parent), but if/when the relationship with the parent ends, the legal relationship with the child typically does, too. (Obviously some step-parents do continue to have a relationship with the child–the key here is that the relationship has no legal protections.)
The question is how these doctrines fit together. It should be clear that at least sometimes, a stepparent acts just like a de facto parent. After all, if a child primarily lives with parent A and step-parent is living with parent A, too, then it’s quite possible that stepparent will develop a full relationship with the child. If it is the right kind of relationship, can it get the protections of de facto parentage?
That’s the question is the new WA case. But that case wasn’t written on an empty page. There’s an earlier case (you can see it discussed in the opinion–MF, it’s called and I cannot recall if I wrote about it–I should have) that ruled this out. Partly I think the concern in MF was that you set up a situation in which you’ll be adding parents. Typically a child with a step-parent has two parents already and so if the step-parent gets de facto status, then that makes three parents. Three is a number that makes a lot of court’s anxious.
But BMH is slightly different from MF, because in BMH one of the two original parents had died. This means that at the outset the child has one parent and with the potential addition of the step-parent, the child ends up with two. Two being the right number, the court thinks this might be okay. Indeed, the genders even work out nicely, for a male parent died and the step-parent is male, so you’d end up with one male parent again.
This is a decision from the intermediate appellate court in Washington while MF and LB are both from the Washington Supreme Court. It will be interesting to see if they take the case on review to offer any further guidance. For the moment, though, I’d say that step-parents can be de facto parents in Washington, though perhaps only in special circumstances.