Delaware legislature gets it right on children with two moms

A mere six months ago I chastised the Delaware Supreme Court for denying de facto parent status to a lesbian mom who had not adopted a child although she and the child's adoptive mother had planned for and raised the child together.

Well, the Delaware legislature has stepped up BIG. It passed a statute creating de facto parent status when the de facto parent:

(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child as that term is defined in § 1101 of this title; and
(3) Has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.

("Parental responsibility" is defined as "the care, support and control of the child in a manner that provides for the child's necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child.")

When a person meets this criteria, she is a legal parent, on par for all purposes with a woman who gives birth to or adopts a child.

The law went into effect July 6, but the law is retroactive, and any cases decided against a legally unrecognized mom under previous law can be reopened. The statute says both those things explicitly.

There is so much that is huge about this statute. Legal parentage has nothing to do with recognizing the couple's relationship to each other, so parentage created this way is not vulnerable to a DOMA challenge. It is full parental status, so that means everything -- not just the custody/visitation/support rights and responsibilites that some courts have extended to a nonbio (or non-adoptive) mom. For example, it means entitlement to government benefits as the child of both parents and the right to inherit from and through both parents. Also, most states have not given EQUAL custody rights to a nonbio mom, and this statute makes clear they are equal.

There are a couple of caveats. The statute probably does not recognize both parents until after the child was born, even if the couple consented to insemination together and fully planned for the child together. Also, it is not clear to me that the second mom can go on the birth certificate, and without that some court proceeding might be necessary, which is a drag. Still, what a great improvement on current law.

Last year, the highest court in Maryland got this issue all wrong. I hope Delaware's legislative response inspires the next session of the Maryland legislature to follow suit.