De Facto Parentage Case Reaches the Supreme Court

There are very few areas of family law that are as controversial and philosophically interesting as the concept of "de facto parentage." On March 10, 2009, the Supreme Court will hear oral arguments in In re Parentage of M.F. In this unique case, the Court of Appeals found that the de facto parentage doctrine may not be used by former step parents seeking court ordered visitation with their former step children. In part, the Court of Appeals notes the existence of other remedies for the step parent in this case, although the step parent notes he would not have been able to succeed or utilize them given the particular facts of his case, whereas he could raise de facto parentage.

De facto parentage cases generally raise the following questions: Should any individual at any time be able to seek court ordered visitation with a child, if such visitation is deemed to be in the child's best interests and they meet the factual requirements of a de facto parent? Or, would allowing these individuals to seek this right under these circumstances infringe upon the constitutional rights of the parent-child relationship -- and should something more be required to be shown, such as unfitness of the existing parent?

You can read the briefs both for & against online here:
81043-5 - In re the Parenting of Marnita Frazier

The concept of de facto parentage originates from In re Parentage of L.B. In In re Parentage of L.B., a nonbiological parent from a same-sex couple (who couldn't legally marry) sought visitation/custody rights to her nonbiological child. In this case, because the nonbiological mother did not adopt and the biological mother would not allow visitation, there was no other remedy. The Supreme Court ruled in favor of the non-biological parent's standing to seek visitation/custody.

There are some very convincing reasons in this modern world why the legal concept of "parent" should expand to include individuals beyond a child's biological mother and father. In this world, where single parenting is becoming common place, it is not unheard of that a third party might step in to provide care in a parental-like role. And, of course, there is the existence of same-sex couples who increasingly have children but are unable to marry. In many cases, these individuals can seek parental rights through adoption, third party custody and other legal means. In other cases, where there is a disagreement about the child's welfare and the existing legal parent is not unfit, there are no remedys available to them.

That is where de facto parentage comes in - to bridge the gap. Because regardless of how it happened, the court cannot deny that these important relationships exist. Arguably, they are important to preserve for the child's best interests, regardless of the feelings of the existing legal parent. But there is some disagreement on how broad or limited de facto parentage should be. Would allowing de facto parentage, as it currently exists, result in 3 parent families, or possibly more? And if so, is this necessarily a bad thing? Should existing parental rights trump the best interests of the child where such parents are not unfit (because presumably, they are in the best position to know the best interests of the child)?

While I believe In re Parentage of L.B. is solid, M.F. doesn't seek to overturn it -- only narrow its finding. There is a chance that the Supreme Court might agree with this limitation. There would then be the question of whether this is discriminatory against step parents, because the remedy would continue to be available to other individuals. I will be interested to know how the court addresses this and the overall outcome.