Why Worry About Step-Parent As De Facto Parent?

I’m continuing on a question I got to last time, though the real genesis of this line of discussion is further back.   I won’t retrace all the steps as you can just go back and read them over.   I’m thinking about a hypothetical (which I quoted in full) that was posed by the Justice Bosson in a concurring opinion in Chatterjee v King.

Put briefly, the question is why should we worry that a step-parent might get to claim rights as a de facto parent?   (You could ask this same question about a foster parent.  The discussion would perhaps be different so I will not include it here.)   In the terms of the hypo from the concurrence, why should we worry that Man might claim rights to the child over Mother’s objections?

I’ll start by observing (as I did last time) that one thing we must do is make sure that the test for de facto parentage is constructed properly–that it is sufficiently demanding, but not too demanding.   There’s nothing remotely easy about this.   If you scroll down in the comments here you can see a post by TAO (who I think is The Adopted Ones) that discusses the definition of a de facto parent in New Zealand.  I ‘m not saying that’s the perfect test, but it’s an example of the kind of test you do see for this.   By contrast, the holding out test (which has historically been used for men only) is a much easier standard–and perhaps it is too easy.   I’ll defer discussion of the precise content of the ideal de facto test for the moment.   (You can poke around under the tag for “de facto” and find discussion elsewhere on the blog if you want to.)

In thinking about the hypothetical case, I want to consider two possibilities:    One is that Man has made his claim for what Justice Bosson calls vindictive and extortionate reasons.   The other is that Man’s motives are pure.   Of course, reality is rarely so simple. People often act from a mixture of motivations and it’s quite possible to disagree about what motives are in any given case.  But for the purposes of thinking about this, I want to keep it simple.

If Man is acting from a pure motive I take it this means he is acting from genuine concern for the child.   Assuming Man is essentially acting rationally (which is different from having a pure motive–it means that there are objective reasons that could justify his actions given his pure motive) this means he has some established and substantial relationship with the child.  It means that in his (reasonable) assessment the harm to the child from the termination of the relationship between Man and child is real.

Now as I’ve said, I do have concerns about the rights of single parents.   (Kisrita rightly called me out on referring only to single mothers last time.)   But that doesn’t mean that I think single parents get to do as they please.   It’s hard for me to see how Man could have developed the required relationship with the child without the active support of Mother.   It’s not like he was sneaking around and putting the child to bed, etc.

The whole idea of the de facto test is that it is grounded in reality rather than in form.  And in reality, where a partner has developed a substantial parent-like relationship with the child it can only be because Mother agreed to let it happen.   (Actually, it could happen without agreement if Mother is completely absent, but that’s hardly a stronger case for Mother’s rights.)   So it seems to me that practically speaking, Mother gave up her exclusive rights.   Is there a reason she should be able to snatch them back?

The other possibility is that Man’s motives are impure–vindictive or extortionate.    This, I do see, is a problem.   Legal proceedings can be used to harass and intimidate and the problem of men asserting abusive custody claims in your run-of-the-mill custody case  is certainly one that is widely discussed.

There are two things I think about in considering the impure de facto claim.    First, how common/likely will the abusive de facto parentage claim be.  Keep in mind that before the claim is made, Man has no child support obligation.  (This is why it is unlike the run-of-the-mill custody case I just referred to.)   If he is successful in a de facto claim he will have a child support obligation.  If he is acting from impure motives, will he really be willing to accept imposition of a child-support obligation?     I suppose this is a question of how much he’s willing to pay (literally) to be vindictive.

Second is there any penalty for bringing a groundless de facto claim?   If we included some sort of penalty, would that deter the vindictive Man?   This actually brings my attention round to thinking about the process for making a de facto claim.   The process can be designed to ensure that only claims that are well-supported can proceed.  You minimize the risk to Mother’s rights if you only require a response to well-supported claim.     A pure Man should be able to make this showing but a vindictive Man might not be.

I’m not yet ready to reach a definitive conclusion, but it seems to me that there are ways we can guard against the vindictive claims and I’m not sure we ought to worry about the pure ones, which means for the moment, I’m not inclined to worry about allowing step-parents to claim status as a de facto parent.   What am I missing?

17 responses to “Why Worry About Step-Parent As De Facto Parent?

  1. I don’t think a mother gives up her “exclusive rights” by allowing someone to perform some of her parental duties for her, not at all. Allowing someone to bond with her child in a parent-like way is not the same as granting them absolute equal authority over her child! Getting married to someone and living in the same house with them is going to give the spouse an opportunity to be in a parent-like position with any children a mother may have, but willingly placing herself and the child in that position does not mean that her spouse gets to become her child’s other parent. And what if the child had another legal parent out there paying child support but who did not see the child? Ooooh even better what if the child’s father were in Jail for life? Huh? What then? Clearly the romantic partner is going to have an opportunity to build a parent-like relationship that is totally real and in California courts grant visitation to step parents and sometimes others in exactly this position but it is not the same as saying that person is a straight up parent or that its the same as them being an adoptive parent.

    You should not be able to be considered married (the legal approved kind) by acting like your married because then the opposite would have to be true, the legal approved kind of marriage would be voided by acting like your not married. You should not be deemed biological parents by going around acting like you are biological parents (whatever that would mean) because then you would have to say biological parenthood could be undone by not acting that way same goes for all the other variations of legal parenthood, like adoptive parenthood. Can you become an adoptive parent by acting like one?????? And by the way, how come that is not the question here? How come all these people going for defacto parenthoood and all are not going for defacto adoptive parenthood? Is that more accurate description of the state of affairs? People who did not legally adopt the child are seeking the same level of legal recognition as if they had adopted so why are they trying to just call it being the child’;s parent rather than being the adoptive parent which is the kind of parenthood you need permission for. The kind of parenthood your saying the mother somehow permitted to have happen.

    Any time someone is enjoying the roll of parent over someone else’s offspring, their parenthood is with permission, Or should be anyway. Even donor’s kids the only reason any genetically unrelated people are allowed to call themselves a parent is because the genetic mother and father allowed it. Think donor consent form (which is not all that binding as I understand it) and the genetic mother which may be a donor who signed a consent form (again not all that binding) or the woman who gave birth if genetically related. You don’t generally obtain that roll without some kind of written OK from both, right? Should you be able to?

    Anytime someone can swoop in and get to be a parent without court approval is in my mind totally dangerous and unfair to the child in question. There are too many other alternatives that would not create a parent child relationship but a guardian type relationship which I think would be better for the kid in the long run.

    • I think your first two sentences are a bit at odds with each other.

      The first one seems quite right, to me, and also unremarkable. I completely agree that a mother does not give up her exclusive rights by allowing someone to perform some of her parenting duties. I think every parent–never mind every single parent–allows other to perform some parenting duties. If someone else picks my kid up after school or takes them for a weekend or things ilke that, there’s no diminution of my parental rights.

      But allowing someone to bond in a parent-like way (that’s sentence 2) is a rather different matter. The friend who takes my kid for the weekend generally doesn’t bond in a parent-like way. Neither does the babysitter and even the live-in au pair typically doesn’t do that.

      Perhaps the key here is what we might mean by “bond in a parent-like way.” I have to concede it is a vague phrase. What, after all, is parent-like? I think a parent-like relationship is something quite distinctive–boundless, endless and unconditional. Of course there will be close cases and there will be cases where there is strong disagreement about who did what when. But think most people dealing with other people’s kids are quite clear that they are not a parent even when they are helping a parent.

      All that said, I’ll stand by main assertions. It’s hard for me to imagine a situation where an adult establishes a parent-like relationship with a child without either the cooperation (explicit or tacit) of the pre-existing parent or the absence of that pre-existing parent. And in either case, I think the needs of the child for stability in that relationship are more important than the interest the pre-existing parent has in continuing to be the exclusive parent.

      It seems to me that some of your concerns are with the fate of a second original parent in the even that a person in a step-parent like role takes on a parental role. (FWIW, I don’t think this necessarily happens just because a parent remarries. Her/his new spouse doesn’t necessarily take on a parental role. The role the step-parent takes varies.) I know court’s worry about this, too.

      Remember that I’m not hung up on the number 2 for parents. Thus, it might be that a child acquires a third parent via this process. I think this might reflect the psychological/social reality that some children experience.

      Concerns over erosion of parental rights will be slightly different (and perhaps more serious) in this case. Suppose you have mother and father and they split and then mother remarries and you have mother/step-parent in household 1 and father in household 2. Mother may foster a parent-like relationship with step-parent and, depending on how the child’s time is divided, I can see that this relationship might developo without the approval of father. I need to think more about that, but my instinct isn’t that father should have the right to automatically negate the step-parent/child relationship based on an assertion of parental rights.

      In any event, I don’t see any situations where anyone is swooping in and claiming rights. The establishment of the appropriate adult/child relationship to claim some sort of right is going to take some time, which it seems to me obviates any concerns about the swooper.

      • What do you mean you don’t see anyone swooping in to claim rights? Your whole blog is devoted to swoopers swoopees and those who are the object of swooper swipes.

        • From my point of view a person who lives with the child and has this kind of relationship for a year or two or more is not “swooping in.” They’ve committed a fairly substantial period of time and energy to the child.

          I suppose we have different ideas about what constitutes a swoop. I was thinking it was someone who’s there for a few months.

  2. agreed with marilyn on this. even though in a particular case it might be in the kid;s best interest to have the person recognized as parent, over all you have ended up creating a dangerously chaotic system.

    • I think you’ve raised (sort of implicitly) a really important point here. There is often a trade-off between the outcome in a specific case (say a hypothetical that I frame) and the overall functioning of the system. There’s no doubt in my mind that sometimes one must say that the interests of some particular kids in one case must give way because of the larger interests in creating a properly functioning system.

      I also think you are probably right to suggest that the trade-off with a system that is very responsive to the needs of individual kids is probably a more chaotic system. I’m thinking that to have a really responsive system you have to have a lot of flexiblity built into the system–take lots of factors into account, for instance. And that will make it less predictable and, in important ways, perhaps more chaotic.

      So all that said, the question is, in some sense, whether the trade-off is worth it. And that in part involves assessing how much chaos, what the costs of the chaos are, who pays it, how much harm to the individual children in particular cases, etc. There’s a lot of assumptions in making that calculation–lots that we just cannot know. You and I might strike the balance differently either because I think the harm to the children is greater or because I think the degree of chaos less problematic or for any of a number of reasons, which can of course be combined.

      • I think that law is, by definition, a generalization. Which means that by definition there will be some occasions where it doesn’t fit exactly. And that sucks for the people involved. However, if you do not make any form of generalization you will have no rules at all. Which means that a judge can decide based on nothing but personal bias or, “a little bird told me.”
        I think what you are suggesting, is to have rules but to make them as detailed as possible to include as many circumstances as possible, so as to limit the cases in which the rule will have to be applied even when it doesn’t fit?

      • But as a rule of thumb it makes sense to hold a child’s parents responsible for the child’s care and upbringing because if not them then who? Not every child will have a laundry list of hopefuls waiting to try their hand at raising them and we don’t want people to take the act of conceiving a child too cavalierly thinking they owe that child no duty of support, so as a rule of thumb you make a kid your responsible for that kid unless a court says otherwise I think that is a very reasonable rule and that if your responsible you need a certain amount of authority to make decisions on behalf of the child. If you are a parent and you meet someone you may well want them to play a parent like role be the other adult in a position of authority in the house and be able to do things like take the kid to the doctor and being a step parent is sufficient to meet that need. The only need not met there is the ego of step parent and the parent that wants them to have that so special parent title. Now I live with someone and she can bring my daughter to the doctor pick her up from school or camp and enroll her in ballet. People think that she is like another parent, my daughter thinks of her like another parent and I’m happy that she and my daughter are so close we all get along like peaches and cream perfect its a harmonious wonderland around here – but its my house and that is my kid and ultimately what I say goes. The idea that someone in that position could try to claim to be my child’s parent and say stop me from moving if I wanted to is outrageous. I am able to allow my child to develop close relationships with people I care about only because I know that I am the person that has charge of my child and anything anyone else does for her or with her is with my express permission which can be withdrawn at any time.

  3. Really this whole thing is very odd to me. You are an expert in law; can you tell me any other area of life where if you lie long enough about something the law will bless it as true? I know you’ll take exception to the word lie but let me give an extreme example: a couple jointly agrees to lie to everyone and specifically say that her child by another man is his biological child exactly and specifically and they lie to the child and lie on the birth certificate and they are not married and they live together a long long time and one day the now adult child of the woman finds out that the mother and her partner lied for 32 years and she asks a friend to locate her father and her friend does and it turns out her mother hid the truth from him while he was away at war. She can’t get her birth record corrected now. They lived the lie so long that now she does not have the right to a legally recognized relationship with her own biological kin.

    Now during the first 18 years had her mother died and he had not been named on the cirtificate he would have qualified to do that holding out thing and probably would have won even if at that point he told the truth and said she is not his biological child. The burden of proof for holding out is basically how long has this guy been lying? We don’t let kids with fake ID’s keep drinking because they got away with it for a year or two? Driving without a license for 10 years never got caught so when you do get busted they say lying and never being busted gives you an honorary license. Draw a set a plans with a code violation that is not caught by the plan checker, build it that way and the inspector comes along and says hey this is a code violation someone could get hurt but we did not catch the mistake earlier so the law does not apply to you.

    So her step dad (and I mean that sincerely) her step dad could have won that holding out thing, which gives him the status of parent sans the adoption when in reality what he should have had to do at the outset was probably marry her mom and do a step parent adoption. They do those even when the line for parent on the birth certificate is blank right? In california the assumption is that every child has two parents and that both have legal obligations until those obligations are terminated. They look for the biological father and if they cannot find him, they terminate his rights and obligations and allow the adoption to go through. So its not like the father had to be named in order to be thought existent and having obligations and rights. So my friend’s dad would have had his rights wrongly terminated had the step father followed the rules because had he known about his child he never would have allowed the adoption to happen. At least it would have been reviewed by a court first. The defacto thing is not only do they skip the need to get the father’s consent to loosing his kid, they skip the mother’s consent and the courts consent. Because the mother’s consent alone would make him just a step parent that court approval is necessary for the total parental rights.

    So this defacto holding out stuff is just a big old skip fest. Just skip over all the consent and checks and ballances to protect the kid and the mother and society at large and just do what ever the hell you want for as long as you can get away with it and then you’ll have yourself a kid and f-the parents if they don’t like it.

    Its terribly wild west as far as justice goes its not logical enough that any one can follow along and make sense of how to comply with a law like that

    • Let me take the hypo in your first paragraph first. So the lie is that they present the child to the world as the genetic child of the man, right? The law never makes this true. That is, the law never says “after X years, the man does become the genetic father of the child.” Whatever the genetic truth–whoever really is genetically related–will always remain genetically related. That’s not a legal relationship at all.

      At the risk of stating the obvious, the law does define the legal relationship of parent and child–here father and child. And it is true that at some point the law will say that the man here is the legal father of the child. I’d describe this as affirming what is a social/pscyhological reality–that the man stands in the social/psychological relationship of father to the child. It’s not a statement that the man stands in the genetic relationship of father to the child.

      I think it might be that in the past it has been assumed that no man would do the holding out thing unless he thought he was genetically related to the child.. But I think this is less true than it was. That’s why holding out was added back into the UPA in 2002. Holding out is increasingly seen as akin to de facto parentage–which is seen to be indepedent of genetics.

      As for the birth certificate, remember that being listed as a parent on a birth certificate does not mean that you are genetically related to the child. Thus, listing the not-genetically related man isn’t a lie if he is actually the legal father.

      Perhaps the other key point to reiterate here is that genetic relationship alone does not necessarily give a man any legal parental rights. If the genetically related man has no legal parental rights then there is no need for any sort of process to terminate them.

  4. Its the familial equivalent to a hostil takeover

  5. Can an adoptive parent be a parent by holding out? Don’t they all do just that when they drop the “adoptive prefix” themselves and get upset if anyone else uses it as well?

    • I’m not sure what you mean to ask here. If a person goes through the legal process of adoption they become a legal parent at the end of that process. There’s no need to wait two years and demonstrate what actions were taken during those years, etc.

      And (though I’m not sure this is relevant to your question) once you are a legal parent–no matter how you got there–you have the same legal status as other legal parents. You cannot be more of a legal parent by claiming parentage on multiple grounds. Thus, if you’ve adopted you have all the legal status any parent has and there’s nothing to be gained by claiming the status again on a different ground.

      • No no Julie what I am saying is that people who should have adopted are claiming they are parents by virtue of having held the child out as their own child when in fact that was not yet a true statement legally. Why are they not claiming to be adoptive parents by virtue of having held the child out as their own adopted child instead? And why can’t an adoptive parent hold out their adopted child as just their child and by virtue of that become their parent rather than their adoptive parent because there is a difference parent implies genetic relatedness and adoptive does not so I’m not talking about the rights I am talking about the legal title without the prefix indicating that the relationship is not genetic.

  6. Julie – what rights does a person receive as defacto parent? I think that has to be the starting point. I did like it in the NZ report how they separated guardianship rights from certain parenting rights – by giving birth you are also given guardianship rights, some will be parents but not have guardianship rights (and they define the difference in parents vs guardianship vs parents with guardianship rights either by genetics/birth or by courts (poor description but if interested you can go back to the link).

    I do believe the test for defacto status would have to be pretty steep and also look at both the parental relationships between each other and the bond between child / person who wants defacto.

    Yes – I just shorted the adopted ones to TAO because I am one of two bloggers on that site.

    • The thing about de facto parentage is that while the concept is fairly well-formed, the actual operational details vary immensely. Thus, exactly what it takes to be a de facto parent varies AND what it means that you are one varies, too. WA has among the strongest versions of de facto parentage. I think under WA law a de facto parent is a legal parent with all rights/obligations that any other legal parent has. But many–possibly most–places stop short of this and make a de facto parent something slighly less than a full legal parent. I don’t know enough off the top of my head to be more specific in describing the range of doctrines.

      It might make sense to connect the two big questions about de facto. What I mean is that it seems to me you could argue that the more rights a de facto parent gets, the higher the bar for being one. And conversely, the less rights a de facto parent gets, the easier it might be to gain recognition as one. I’m not sure you’d find this connection really plays out in law, but it seems to me that it might make sense if it did.

      And I cannot help but think that some greater uniformity might be helpful for all those reasons that come up when we talk about the patchwork quilt types of problems–when the law varies a lot place to place it generates all sorts of problems.

  7. Julie said: “And I cannot help but think that some greater uniformity might be helpful for all those reasons that come up when we talk about the patchwork quilt types of problems–when the law varies a lot place to place it generates all sorts of problems.”

    There does need to be uniformity – even if it ends of being minimum rights / minimum standards – at least there would be a starting place across all states. I know the state self determinination is a hard barrier to break down but at some point you have to at least be able to create a unified starting point. This is really applicable to all areas of family law and especially to adoption and birth families…

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