At Last–A De Facto FATHER

I’m diverging from the ongoing conversation that arose from the Bode Miller custody case (which we can always come back to) to talk about a brand-new (as of this AM) Washington case.   And really, I’m happy to have it to talk about because sometimes I get the feeling that some of you think I am generally anti-male/anti-father.  Here’s a case that (might) help convince you I’m not.  

It’s called In Re BMH and is from the Washington Supreme Court.   I’m only going to do a superficial job at the moment (both Hanukkah and Thanksgiving approach), but it’s a start. 

Laurie and Michael Holt began a romantic relationship in 1993.   In 1995 they had a son, CH.   They never married and they separated in 1998.   (Just so you’re not in suspense, I think it is quite clear that Michael Hold is a legal parent of CH and that’s not in question here.)

Just a little while later, Laurie Holt became engaged to another man.   She and this new man conceived a child.   But the fiancée was killed in 1999  in an accident when she was three months pregnant.  The eventual child is BMH.

After the death of the fiancée, Michael Hold reappeared in Laurie Holt’s life.  In the words of the court, he provided “significant emotional support” during the pregnancy, was present at the birth and cut the umbilical cord. 

The Holts married, but ended up divorcing in 2001.   The parenting plan for CH provided that CH would live with Laurie Holt during the week and Michael Hold every other weekend.    BMH wasn’t in the plan but the children followed the same schedule.  

Michael Holt remained a part of BMH’s life.  The child’s last name was changed to his last name.   Though the Holts discussed adoption they decided against it as they thought it might endanger survivor benefits BMH received because of the death of his biological father.    

There’s a lot more detail in the opinion, but the long and short of it is that in 2009/10 Laurie Holt proposed to move, with BMH, a distance way.  It may not seem far (50 miles–not cross country) but it was enough to disrupt the relationship between Michael Holt and BMH.    Michael Holt objected and sought recognition as a de facto parent of BMH.  

Ultimately the court agrees that Michael Holt is entitled to be recognized as a de facto parent.   He formed a parent-like relationship with BMH–one that lasted for years.  He did so with the support and approval of Laurie Holt.   He doesn’t fit any other category of legal parent.  

There’s a long concurrence/dissent that makes a feminist case that this decision is bad for women.   I need to read it more carefully before really commenting, but in general I don’t agree.    Michael Holt didn’t just have a relationship with Laurie Holt.  He had a close and enduring relationship with BMH.  I think if a parent let’s another person form and maintain that sort of relationship for a long time, then they are bound by the choices they made.  That’s the reality the child has lived with.  

I think it’s a good decision but I’m sure there is more to say. 

Happy Thanksgiving, everyone.  And Hanukkah, too, if that’s applicable.  



40 responses to “At Last–A De Facto FATHER

  1. I would say its fine but how does it impact the boys legal kinship within his own family? will his birth record change? its paramount that legql kinship in his bio family be maintained. id be much cooler with ll this defactoin and adopting if people remained legally yhe child of tjeir bio parents kin of their kin and yet adopted or defacto kin of the caregiving party

    • Do you mean how does it impact the boy’s legal kinship with his genetic forebears? For the most part I don’t think it has any impact–but that is partly because legal kinship with extended family is only relatively weakly protected to begin with. What I mean is the main fuss is about parental rights. Rights of grandparents/aunts/uncles etc are but weakly recognized in law. (And to be clear, that would be true whether the man who was the genetic father survived or not.)

      I think there might be a question if one of the genetic grandparents, say, left an estate to “my grandchildren.” But it would in all likelihood turn on a court’s best guess about what the grandparent wanted.

      I don’t think it makes any sense to have legal parentage remain with a person who is deceased. He (in this case) cannot actually execute either the rights or the obligations of legal parentage. This isn’t to say his memory should be erased or extinguished. Both can be preserved, as can his ties to the extended family of the deceased parent. The child may well say “my father died before I was born.” But he’s much better off with a living and caring legal parent in addition.

  2. good ruling. however, if the kid was a baby I’d look at it differently.

    I also tend to take sibling relationships into account, for me that would be a factor in determining a child’s best interests. although the law as it stand today doesn’t seem to account for that.

    although it seems the older brother is 18 already, which i guess is why his name didn’t come up.

  3. Of course he should have de facto parent status. He was dad.

    Why are people and apparently courts as well (second case recently) so stuck on this “cut the umbilical cord” as if it is some magical bond created. If it created some type of bond we would all be bonded for life to the doctors who severed our cords at birth.

    • Agreed absolutely. totally irrelevant. anyone can cut a cord.

      • Anyone can do it, but in our culture people don’t generally ask just anyone to do it. Either it gets done by hospital staff or it is a person chosen for the task. I’m not saying it is hugely important, but as my response to TAO notes, it may be some evidence of the mother’s approval of the man’s relationship with the child. Not conclusive evidence, mind you. Just a piece of evidence.

        • people often allow whoever is their support person at the birth to do it. I had a female friend attending my son’s birth with me, who i may have asked to cut the cord, although things happened not to turn out that way

          • Right. And I don’t mean to suggest that if you asked the female friend to cut the cord it means she’s a parent or anything like that. I just mean it is some indication that she was present and somewhat involved. I really don’t think it adds much, and I do think the emphasis on it in court opinions is often silly. But to the extent it adds anything, it’s not about the adults relationship with the child but rather about the relationship between the adults.

    • I know what you mean about the umbilical cord thing, but there is a reason why it might be relevant. I agree it says nothing about the relationship between the adult and the child. But another consideration in de facto cases is the role of the initial legal parent.

      Where (as seems to be the case here) the initial legal parent encourages the child/adult relationship it is much harder for her to later claim the relationship infringes on her parental rights. (If you don’t want the man to become a parent, you shouldn’t encourage the parent/child relationship over the years. And if you do encourage the relationship, then you have tacitly agreed to it. In many ways I think of this as being necessary fairness to the child. In any event, judges do care about the initial legal parent’s attitude towards the relationship. And the fact that the mother had the man cut the umbilical cord speaks to that. It doesn’t prove anything, in and of itself. But it is some evidence of how she viewed his role in the child’s life. It’s a part of a larger picture–even if only a small part.

      That said, I agree that many people do seem to make rather a big deal of it.

      • probably because not being in the field of pregnancy and childbirth, they think of it a bit mysticcally

      • Trying out a new term? Initial legal parent

        • You mean am I trying this out? Yes, I suppose I am. In de facto cases you need some way to identify the person who begins as a legal parent as opposed to the person who is seeking to become a legal parent in order to keep meaning clear, I think. There are doubtless other possibilities and I’m not sure I chose very carefully. First legal parent? Starting legal parent?

  4. I don’t see why it’s so important for a child to stay in contact with former step parents, let alone have them retain custody. We can’t artificially protect them from life changes like that, sometimes people that are very close become separated and that’s that. The step parent should not have a right to force themselves into their ex’s life, they aren’t a real parent that will always be a real parent whether they are in their child’s life or not.

    • It seems to me, for there to be a “real” parent, a parent must recognize the existence of the child, and the child must recognize the existence of the parent.

      The term “fatherless” in North American and English history didn’t tend to refer to orphans. It referred to fathers who did not acknowledge children.

      No relationship can exist when one party does not recognize the other’s existence.

      • Sorry I meant to say “biological parent” sheesh. The point is that bio ties are facts, true real facts, not feelings or judgements or fleeting relationships. Check this story:

        Even after more than 50 years, a biological parent can be found and reunited with their offspring they barely even knew existed, and their cousins and siblings and uncles and aunts are real relatives, in spite of them not knowing about each other’s existence. In contrast, step parent ties are fleeting. Dating someone’s mom doesn’t create an indelible undeniable connection to that person, and doesn’t give a right to continue to parent them after the relationship ends. I don’t think it should obligate anyone to continue to support step children either, the way genetic parents are obligated to.

        Now I suppose there could also be a heartwarming story about someone who tracked down a man who who help their mother raised them as a child, before separating and losing contact. But it wouldn’t create an extended family, it wouldn’t mean new cousins and neices and stuff.

        • I suppose I’m saying that relationships are also facts, and are often more enduring and significant, then unacknowledged biological facts. At a minimum, a biological fact needs to be acknowledged by a minimum of 2 people to make a relationship.

    • “we cant protect them” oh, but sometimes we can john, and in this case tje judge dif just that. your attitude that we must tell children to suck it up becausr there parent cany be bothered by the ex , just shows how your victorian morality has little to do with the welfare of children.

    • It isn’t that important for all children to remain in contact with former step-parents and that is hardly what this case requires. But some step-parents occupy a role in the child’s emotional/psychological life that is (from the child’s point of view) as critical as the role of parent. That’s true in this case. In those cases, the reason to maintain the relationship is because it sustains the child’s well-being. To terminate the relationship is to do significant harm to the child.

      MIchael Holt is the only father the child has ever known. He was always there for the child–and he didn’t force himself into that role–he was invited in by the child’s mother. There’s no suggestion that the series of men who played a role in the mother’s life are similarly situated. And I think that illustrates the limits of the de facto doctrine. Not just any passing boyfriend–nor even any step-parent–can invoke it. But some step-parents can and, in my view, should be able to.

      • Anyway Julie you score a point here- You’re not anti men, you’re only anti people-whose-connection-at-the-time-of-birth-is-primarily-genetic.
        although i’m not sure it there’s all that much difference.

        • I think it would be more accurate to say that I favor those who have social/psychological parent/child relationships over those who claim legal parentage by other means. So, for example, I’m not wild about the marital presumption, which depends on a legal rather than a social relationship.

          Also I think it is not the same as being anti-men for two reasons. First, the set of people I’d disadvantage includes both men and women–an egg donor who has no particular relationship to the child say. Second, I will advantage anyone who takes the time/trouble to forge the relationship, no matter what gender. Now it is true that those whose only connection is genetic would be disadvantaged under my ideas. it is also probably true that those whose only connection is genetic are more likely to be male. Still, I think the differences are important enough to note.

          • no fair julie, i can link to plenty of posts of yours on whivh youve suggested that these men should be barred from even trying to estsblish a relationship in the first place. shall i start my homework, or perhaps what you mean is youve changed your mind?

            • secondary point i think you are engaging in a double standard as to what you consider a gendered issue. for example you were clr on calling the relocation issue a gender issue despite that the law itself is gender neutral, becausr of how it disproportionately affects women. here to, the fact that you can drum up a remote case involving a woman, does not mean this is not a gendered policy.

              • This, I think, is important. In general it is perfectly possible for a gender neutral policy to have gendered effects. That was one of the points I wanted to make in the relocation discussion. A gender neutral policy will have gendered effects where the behavior of people is skewed by gender. So if vastly more women have custody than men have, anything the restricts the activity of the custodial parent will have a greater effect on women than on men.

                I agree (as you suggest) that this is another area where a formally gender neutral policy (favor the person with a developed relationship over the person with no developed relationship) may well have a gendered application–because more women will have developed relationships with children. I don’t mean to deny that. I’ll agree that, as applied to our world, in both of these instances you see results that are skewed by gender.

                I didn’t mean to suggest, however, that this alone is a reason to fault a policy. Instead it is something to recognize and take into account. And here I think about the two policies differently. I perhaps should discuss this in more detail in an actual post, but let me at least give an example.

                One thing that matters to me is that in the relocation example, there is nothing that a woman aware of the law can do to gain equal footing, except for giving up custody of the child. I don’t think that is a desirable thing to encourage as a general matter.

                In the de facto parent analysis, a man can gain equal footing by investing the relationship with the child, just as the man here did. This, it seems to me, is a good thing to encourage as a general matter.

                So bottom line is that I think gender skewed results can be justified, but they require some careful scrutiny. I don’t mean to deny the similarity you identify.

              • I agree with Julie.

                A “neutral” policy can have gendered effects.

                Insurance agencies tried to not cover pregnancy — calling their policy to not cover labor a neutral effect and not discriminatory towards women. (They didn’t cover pregnancy for both men and women — thus a “neutral” policy.)

                Of course, men cannot get pregnant, and do not need to pay hospital bills related to labor. This is an extreme example, but it illustrates the point.

            • I’m not sure what you mean by “these men” in this comment. You mean men who have evinced no interest in the child but happen to be genetically related to the child? I probably have said something like that as to them. But I would say the same as to women who have evinced no interest in the child but happen to be genetically related to the child. It’s more common for men to be in this position than it is women, but I’d treat them the same. And if the person has become a significant figure in the child’s life, I’d take that into account for men and for women in the same way. As this case does.

              I don’t mean to avoid the topic and I don’t want to send you off to try to search the blog–which isn’t as well-indexed as one might wish–unless it’s really necessary. But I’m also not sure I can agree/disagree until I understand more clearly what you mean. I don’t think I’ve changed my mind here. But perhaps I have done so without realizing it.

              • I am thinking of cases in which the baby has a genetic father willing and able to assume the parental role, but I recall that you prefer the mother’s partner.

                Is that still your position?

                • Or that it is fair in some altrnate universe to collct child support from a man but not recognize him as a father in any other way? is that still your position? and are yo still toying wih the idea of every child having only one parent at birth, the mother?

                  • I think it can be fair to collect child support from a man and not recognize him as a legal father with rights to make decisions about the child. (I might want him recognized in some other ways–for example, to provide health information relevant to the child, say.) Child support need not be understood to buy a man the right to make decisions for the child.

                    I reach this conclusion because I think you can offer different rationales for how you assigned child support obligations and how you assign decision making authority. The former might be assigned on the “you break it/you pay for it” theory–if a man knowingly engages in conduct that brings a child into this world, he can be held responsible for the costs of his conduct. (Of course, I’d rather the costs not be some much assigned to private people at all–public support for child care, etc. But that’s a whole other discussion.) The decision making authority ought to be assigned (in my view) with an eye towards assigning it to someone who really will have the child’s interest front and center. That means it needs to be assigned to someone who both knows and cares for the child–and not just cares for in some casual way. Hence my preference for the psychological parent, who may or may not be the genetic parent.

                    The “who is a parent at birth” question is a very hard one for me and I am still unsettled about what I think. I am still toying with the idea that there is only one parent at birth–the woman who gave birth. But I just don’t know quite whether I really want to commit to that view.

                  • I love hypotheticals. So lets play what if again, shall we? Lets try this policy on women, not men and see how you react.
                    Imagine a lesbian couple who plan for ages for a child, they choose and purchase the sperm together, share the costs, plan what to name the kid, and one partner is present while the other inseminates. Perhaps she even inserts the sperm herself.
                    But by the time the kid is born the couple has had a falling out. The birthing woman claims her former partner has no claim to parental status.

                    Like many ART users, the former partner points to her role in bringing about the child’s conception.
                    The judge agrees to consider this and outs with the following ruling: The former partner has no parental status, has no right to ever see, communicate or receive any information about the kid at any time without the express agreement of the mother, but will have 18percent of her paycheck garnished to support that child until it turns 18 (and if they live in New York, she will also be required to contribute to the child’s college tution).

                    What do you think of this ruling?

                  • I think I can be consistent here. The ex-partner should be obliged to pay child support. (I have no opinion about the amounts, etc. and I don’t know about NY law, but it seems to me that those are details.) If anything, this is stronger than the case for support where it is a man who just had unprotected sex. This was about deliberately bringing a child into being. (I can imagine a defense to support if it could be shown that the other woman deliberately mislead her in the hopes of getting the money.)

                    And I don’t see much of a claim for visitation, etc. Now perhaps she is entitled to something (money, I mean) if she can show that the other woman acted in bad faith. But assuming that there was good faith all around and things didn’t work out, I don’t actually see much of a basis for her claim to time with/control over the child.

                    This does mean that the non-pregnant co-parent is at risk. I see that. But I don’t see how to reach a different result. I know some people argue something like “joint project” to give each partner a claim, but I’m uneasy with that.

                  • wow, you really are consistent here. I’d have to agree then that you don’t appear to have personal animosity towards males, although your policy that you advise is severely anti-male as we discuss even if it constructed gender-neutrally.
                    i still find this state of being to be grossly unfair, even if is equal opportunity unfairness.
                    Still, if you model your idea of child support as a liability payment instead of as a function of a dependent-kin relationship, why would you structure it as a child support issue, instead of as a liability? liability has nothing to do with the person;’s income and is based only on the assessment of the damages caused. (in this case, “damages” means a real live kid).

                  • I do actually feel some obligation–perhaps a silly one?–to be consistent.

                    I can see the way in which you think the application of the gender neutral policy in our gendered world leads to unfairness. I have two reasons for going ahead anyway. One is that I think it is better for kids–whether it is fair to the grown ups or not. There are unquestionably instances where fairness to the adults conflicts with what is best for kids. (You may not agree this is one, but I think we should all agree that there are some out there?) I think those leave us with very difficult choices, but we do have to choose. The second reason is that I think the unfairness would vanish if the behavior of men and women changed, and I think those changes would be positive all around, so I want to encourage them. Further, individual men (assuming they know about the law) can actually take action to remedy the unfairness–and again I think it is a good thing when they do.

                    I would structure it as a child support issue because I think that is the measure of liability in these instances. Perhaps you’re right that this could be decoupled from income of the payor, but I’m not sure. The cost of raising a child varies with the income level of the parents–rich parents spend more on their kids then poor parents do. I will mull that one over a bit, though.

                  • amazing that you would consider fairness to the child restricted only to the dollars and cents value of the missing parent. How truly objectifying and commodifying to the missing parent, and how sad for the child to lose out on a potentially nurturing and loving relationship from an available and willing biological father.
                    just because some children would not experience it as a loss, how can you justify systemically depriving thousands of children by institutionalizing this into law?
                    I am glad that the law does not recognize any such option- to penalize someone for causing no harm. a wrongful life lawsuit here would totally get thrown out of court.
                    as it stands today, child support is not a penalty, nor should it be. it is a function of a dependent-kin relationship. unrelated parties can not be hit upon to support random children; yes adults do have some rights to.
                    if you do not view a genetic father as kin, there is no reason to hit him up for money than anyone else involved in the childs birth- including doctors, nurses, and taxi drivers.

                  • Oh dear–I’m afraid I haven’t been clear again. I’m not sure where I suggested that fairness should be restricted to dollars and sense.

                    What I meant was that I think the most important thing to keep in mind as one works a lot of this out is the well-being of kids. They need their existing relationships protected–not because it is fair to the adults but because it is necessary for the child’s well-being. I suppose what that means is that I care more about existing relationships than those that have a potential to exist. There are many people in a child’s life who have the potential to construct that relationship. Perhaps you want to say that among the those people, the person (or people?) with a genetic connection should be preferred over those who do not have it? I could think about that. I might prefer the people who have a functional relationship with any existing legal parents, too. But I’m not sure any of this is implicated here yet. (Or maybe I’ve lost the thread we are following.)

                    I would prefer that child support not be primarily privately provided–I’d love to see a European model. But if it is to be private, then it seems to me I would look to the people responsible for the child’s creation. That means intended parents where relevant. It means the lesbian co parent who plans the child. And it means the guy who engages in unprotected sex, too.

                • I don’t mean to duck, but I think I need more facts (and I honestly cannot recall the case or cases you’re referring to.)

                  In a general way I can say this: If the genetic father had no ongoing relationship with anyone mother or child, I mean)–say he was a one-night-stand guy–then I would give him no particular preference. That means that if the mother’s partner did have a psychological/social relationship with the child I might indeed have preferred that person over the genetic father. But if the mother’s partner had no real social relationship with the child either (as was the case with a series of the mother’s partners in the case that is the subject of this post) then I would not give the partner any preference either. Merely being the mother’s partner doesn’t really mean much from my point of view.

                  • about the child support, we discussed it here:

                    among other places which i can not find now.
                    the idea that a man who sires a child should be treated as someone who broke something, commited some sort of offense for which he is liable, is anti men. (unless of course, he was a “sperm donor,” in which case he gave the “gift of life”).
                    and what it says about the child’s life isn’t very life affirming either.

                  • (This is really a continuation of my conversation with kisrita, but I seem to have reached the limit of the number of reply to reply to reply allowed so I’m posting as a reply to my own comment.)

                    First off, I do not mean to say that fathering a child is akin to breaking something. But the idea of imposing financial responsibility for personal conduct which results in expenses is well known to us. I think that’s behind both the “you break it, you pay for it” and the proposal I’m entertaining. When a man chooses to have sex he takes the risk that that a child might result–and if it does maybe he should be at least partially responsible for the expenses. I do understand this is a controversial view, of course.

                    On the other point: I think if at birth you asked me to pick between two candidates for legal parenthood and the candidates were: A) a person with an existing, positive and significant relationship with the woman giving birth but with no genetic connection to the child and B) a person with no existing relationship to the pregnant woman at all but with a genetic connection with the child, then I would generally pick A. It will still depend on specific circumstances, I think. (After birth the most critical factor to me is relationship with the child, but no one can have that before birth, really.) Perhaps this is responsive to your earlier question?

                    The key for me is that the result is child-centered–as in asking (in a general way, not specifically case-by-case) “what is best for children.” Usually I think picking people within their existing social/psychological networks is better than picking people because of genetics. This doesn’t mean I’d say one should necessarily freeze the genetic parent out–that may also be an important person. But I would not prefer that person as legal parent.

                  • In that case, I am afraid you have not redeemed yourself from anti-male bias. Your reasoning sounds similar to those who would restrict women’s access or deny funding to pregnancy termination and even pregnancy prevention services. I am sure you have heard this theme. It goes something like “you spread your legs, you gotta pay for the consequences.” Surely any person with any concern for women’s rights, would find this reasoning unacceptable. Parenthood, health care, and a child’s life are not a means to regulate women’s sexual behavior. But your policy for men is “you unzipped it, you gotta pay for the consequences.” No fair.
                    Surely you are aware that some of those folks would make a “rape exception” ie exceptions for women for whose behavior they approve.
                    Your willingness to reward a man whose behavior you approve, in this case care of unrelated children in the service of their mother, does not absolve you from anti male bias.

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