When A Step-Parent Can Be A De Facto Parent

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.



8 responses to “When A Step-Parent Can Be A De Facto Parent

  1. I would actually agree with that- 3 is a crowd with regard to parenting.
    Note also that he is classified as a step parent despite being present in the child’s life from birth. I agree with that too. And I believe same sex co parents should be held to the same standard.

    • I think it’s actually rather odd that they count him as a step-parent. What does it mean to be a step-parent? A step-parent might be a person who steps into the place of another parent, for example. Or a step-parent might be someone who comes along well after the original parent has an established parent child relationship. But neither of these desriptions fits the guy here, unless you count the genetic male parent as a parent even before the child was born, which I guess is possible. Really this does make me think about what exactly makes you a step-parent. (I suppose I also ought to think about why that matters.)

      • I don’t know the etymology of the word step-parent. maybe it does have something to do with stepping in, although the mythical fairy tale step-mothers did exactly the opposite of that.
        But, I think it’s rather easy to define. A step parent is a person who plays a parental role by virture of their relationship with the parent.
        The de facto parent doctrine, as I understand it, means that the step parent can eventually become a parent independent of their relationship with the other parent. Now while the criteria may vary, I don’t think cutting the cord shoudl cut it according to even the most minimal definitions.

  2. I get your point Julie so its not lost on me how the courts see it but you said something disturbing, you said the child’s father died and so they only have one parent. Are you serious? Would you seriously say that a child only has one parent has no father just because the father is dead? The child’s father passed away. The fact that a step parent was there for the child should not mean he can lay claim to the title of father just all plant his big old daddy flag in the kids back and say “i’m your daddy now”. See what the state will do just to ensure two sources of continued support for a kid? Honestly. I know so many people who have gone and changed their names back to their real father’s names because they were adopted by their mother’s spouses or because their mother’s put their husband’s names on the birth certificate instead of the real father. They have got the wrong name all over their documentation its a huge mess. It does not mean they don’t love their step fathers they may even have thought they were really their fathers until they were 30 and then they find their families and frequently change their names back to what it should have been. Women are so lame they break up with a kids father fall madly in love with whoever the new guy is tell everyone around them how much more new guy does than the real dad – put him down call him donor and then bug new guy to adopt their kid and push dad out of the picture. Shallow thoughtless relationship serving…virtually always end up divorcing new guy too. Listen my Dad was new guy to my brother but there was no adoption. I only recently found out my mom pushed my brother to change his name to my dad’s – my dad was so proud of that. He is my brother’s dad too but now my brother has a relationship with his dad for the first time ever. He thought that would hurt our dad. So much for a kid to worry about.

    • If a parent dies they are not in a position to exercise the legal obligations/rights of parentage. So for example, a parent has the right to make decisions about a child’s medical care. Once a parent has died, they really cannot play that role. So yes, I do mean what I said. When a person dies, they cannot occupy the role of legal parent anymore.

      I don’t think this is really very remarkable because I am focussed on legal parentage. I don’t mean that the person ceases to be a figure in the child’s life. I don’t mean that they are erased from memory. ANd I would never deny that they once existed and have lasting importance. I just think it is inescapable that when a legal parent dies they cease to be a legal parent.

      There are implications of that. For example, the surviving legal parent is now a single parent and can make decisions all by him/herself. She/he may well decide that she/he wants to share parenthood with someone else–a subsequent partner, say. That new partner might adopt the child and become a legal parent. The law will generally allow that if the specific conditions are suitable because the child only has one legal parent and so adding one makes two–the standard number. (If the child already has two legal parents, then adding one poses all sorts of other issues.)

  3. My dad died and he’s still my dad. I think pretty much everyone goes through that horrible experience.

    • I get that parents are parents forever–my parents–both dead–are still my parents. But a deceased parent cannot play the role a legal parent plays for a child. That’s all I mean to say.

  4. On the goose v. gander theory,. would a child be able to claim benefits and rights against an unwilling step-parent if the facts were very close to those of BMH? Arguably, at least?

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