Courts expanding definition of ‘parent’ to recognize ‘de facto’ parenthood

Traditionally who was a parent was pretty clear-cut. If a child was yours biologically or if you adopted him or her, you were considered a parent. That would give you the right to seek custody and visitation if you and the other parent were no longer living in the same home.

But just as traditional notions of “family” have evolved in recent years, so have traditional notions of who a parent is. Two recent court decisions make this clear. Both decisions appear to recognize the idea of a “de facto” parent: a non-adoptive, non-biological caretaker who has earned parental status through the bond he or she has developed with a child and who deserves to be viewed on equal legal footing with the biological parent. And while both decisions involve same-sex couples, the reasoning behind them could extend to any non-adoptive, non-biological “parent.”

The first case is from Maryland and involved Michael Conover, a transgender man (a person who was born biologically female but identifies and lives as a male) who married a woman before undergoing gender transition. Before his transition, he and his wife, Brittany Conover, lived as a same-sex couple.

In 2010, Brittany gave birth to a son fathered by a sperm donor whom Michael helped select. Michael was not listed as a parent on the child’s birth certificate, nor did he adopt the boy at any point. The couple separated in 2011 and divorced in 2013.

A year before the divorce Brittany stopped letting Michael visit the child. Michael ultimately sued for custody and visitation rights. A trial judge ruled that he had no parental rights because he wasn’t the child’s biological or adoptive parent. In making the ruling, the judge followed a 2008 decision from the Maryland Court of Appeals. That case said that someone in Michael’s situation had no better claim to parental rights than any other “third party” nonparent seeking custody or visitation. The judge said Michael couldn’t get visitation or custody unless he could show Brittany was an unfit parent or there were “exceptional circumstances.”

Michael appealed and the Court of Appeals, realizing it might have gotten it wrong in 2008, decided that he could indeed seek custody and visitation. Specifically, the court said that a family judge could award custody or visitation to someone had previously lived with and helped raise a child, even if he or she was not related by blood or by law. Now the case will go back to the trial court to determine if Michael fits the bill.

The other case is from New York and involved a female same-sex couple, “Brooke S.B.” and “Elizabeth A.C.C.” In 2008, Elizabeth got pregnant through artificial insemination and gave birth to a boy. Brooke never adopted the child, but was present at his birth, cut his umbilical cord, gave him her last name and raised him jointly with Elizabeth.

After the relationship ended in 2013 Elizabeth denied Brooke access to the boy. Brooke sued for custody and visitation, but her claim was rejected by a family court judge who found that existing law didn’t recognize “de facto” parenthood.

New York’s highest court decided its old decisions on the issue no longer applied. Instead, the court said that as long as someone like Brooke could prove that she and her partner agreed to conceive a child and raise him together, she could seek visitation and custody.

These rulings have been hailed as major victories in the LGBT community because they involve same-sex couples. However, they would presumably apply to any situation where a non-biological, non-adoptive “parent” is in the picture.  For example, a male caretaker who has taken on the role of a father in a heterosexual relationship could potentially claim parental rights if he and the mother split up.

At the same time, these rulings leave some unaddressed issues, such as whether the “de facto” parent can be ordered to pay child support or whether the child of a de facto parent qualifies for benefits should that parent pass away. There are also questions about whether a stepparent who has achieved de facto parent status might even be able to take sole custody of a child if a judge determines it’s in the child’s best interest.

Finally, even in states that recognize de facto parenthood you’ll still need to convince a judge that you qualify. And judges can be unpredictable. So to avoid that unpredictability your best bet may be to establish yourself as a legal parent via marriage and adoption. Talk to an attorney to discuss your own situation.