Wednesday, April 7, 2010

Can a step-parent be a de facto parent?

The Supreme Court of Washington ruled last week that a stepparent cannot be a de facto parent. Five years ago, that court acknowledged, in In re L.B., that a nonbiological mother in a lesbian couple was the de facto parent of the child she had raised from birth, for six years, with the biological mother. In last week's case, In re M.F., a six-member majority ruled that a court must decide whether the de facto parentage doctrine applies before applying the factors used to determine if someone is a de facto parent. The court found that it could not apply to a step-parent, at least not when the child already has two legal parents.

In the case, M.F. was born to married parents, Patricia Reiman and Edward Frazier, who separated shortly thereafter and then divorced. The mom had custody and the dad had visitation rights. The mom remarried when M.F. was two years old, and that marriage produced two sons. When that marriage dissolved, the mom and dad, John Corbin, split the time with their two children, but M.F. was usually with the boys when they stayed at their father's. Three years later Corbin petitioned to change the parenting plan with the boys, and the mom stopped sending M.F. when the boys went to their dad's house.

Even though Washington lacks a specific statute on stepparent custody and visitation, the court said there was such a statute (as far as I can gather they meant that there was a third party custody statute which the courts had applied to stepparents). Oddly, the third party custody statute referred to the best interests of the child but the case law said the third party would have to show parental unfitness or actual harm to the child to gain custody.

The majority made two reasonable points. It is different to plan for a child from the beginning. The parents in L.B. would have been parents from the start under the DC parentage statute; they were the functional equivalent of a husband and wife who have a child using donor semen. (The child is born with two parents, even though one parent is not biologically related to the child.) The other reasonable point was that the de facto parent test in L.B. might be satisfied in many, or maybe even most, stepparent situations. In most cases, the parent will foster a parent-child relationship, the family will live in the same house, and the stepparent will function in a parental role. That should not always make the stepparent a person with the same right to custody as the child's legal parent.

But the majority's ruling is really predicated on a notion that is fundamentally flawed -- the idea that a child cannot have more than two parents. The three dissenting judges agreed that the majority was too fixated on the fact that the child already had two parents. That should not be test. It's time for law to recognize the fact of children's lives...that many have more than two functional parents. According to the dissent, M.F.'s father supported the stepfather's efforts to be named a de facto parent. M.F.'s mother is the one who facilitated the development of the parental relationship between the child and Corbin -- who came into the picture, after all, when the child was just over a year old. The dissent notes (and the majority ignores) that M.F.'s therapist believes the Corbin is a de facto father and that losing him would be devastating for the child. (This should meet the actual harm standard the majority presents, but there is no mention of that).

The Northwest Women's Law Center filed a friend of the court brief specifically to urge the court to recognize that a child can have more than two parents. The ACLU also filed a brief on behalf of the stepfather. Both organizations strongly support the rights of parents to raise their children and want to protect those rights against inappropriate incursion. But it is possible to do that through a carefully crafted and applied rule, under which some, but not all, stepparents are recognized as de facto parents.

And the dividing line among stepparents shouldn't depend on whether a child already has two parents. By drawing that line, the Washington Supreme Court is treating a child with one parent (usually a mother) as having less of a family that a child with two parents. Wrong, wrong, wrong. A single mother may have a new partner who should not be considered a de facto parent. A divorced mother may have a new partner who should be considered a de facto parent. This is a court that has stepped up to the plate in several cases to recognize functional families -- both couples and parents. Not here. Here they were blinded by the number two.

It may turn out not to be so bad for this child, who is now 16 years old and who had visitation with her stepfather pursuant to temporary orders during much of the course of this litigation. I hope she will have a lot of say in what kind of relationship they have going forward. But for other children in Washington state, the case establishes an unsurmountable obstacle to recognizing the reality of their lives.