Case Law Development: Washington State Supreme Court Recognizes De Facto Parent Doctrine

The Washington Supreme Court has adopted the de facto parent doctrine in a case involving a same-sex couple who ended their relationship when the they had been raising together was five years old.  The child had been conceived by artificial insemination and the birth mother had denied her former partner access to the child after the break up.  The partner sued, asking for a determination of parentage under the UPA, or as a de facto parent, or, in the alternative, for third-party visitation rights.  The Supreme Court of Washigton found no standing under the UPA.  However, exercising its equitable power, the court established a common law claim of de facto parentage separate from the UPA and concluded that establishing this claim was not an unconstitutional infringement on the parental rights of fit biological parents.  One judge dissented on the basis that the UPA provided the sole avenue for establishing paternity.

Carvin v. Britain, 2005 Wash. LEXIS 861  (November 3, 2005)
Opinion on the web at http://www.courts.wa.gov/opinions/?fa=opinions.opindisp&docid=756261MAJ (last visited November 4, 2005 bgf)

The majority opinion began by examining whether "the equitable power of our courts in domestic matters permits a remedy outside of the statutory scheme, or conversely, whether our state's relevant statutes provide the exclusive means of obtaining parental rights and responsibilities." 

The court concluded that:

"A review of our state's jurisprudence in this area thus reveals the following: 
(1) our legislature's certain and unwavering emphasis on the "best interests of the child" and on a child-centered approach to resolving custody and visitation disputes,
(2) the legislature's recent proclamation, supporting previous common law holdings, that the marital status of a child's parents shall have no bearing on the child's rights to a legally cognizable relationship with parents,
(3) our legislature's commitment to the principle that sex and gender roles do not serve as a proper basis for distinction between parenting parties, and
(4) the recognized and accepted role of the judicial branch of our government in resolving family law disputes, especially when the legislative enactments speak to an issue incompletely.
It is evident that the UPA, especially when considered in the broader context of Washington's familial statutory scheme, was intended to supplement and clarify parentage actions and not to supplant the common law equity powers of our trial courts with regard to parentage, visitation, child custody, and support." (citations omitted)

Next, the court outlined the criteria necessary to establish standing as a de facto parent:

"(1) the natural or legal parent consented to and fostered the parent-like relationship,
(2) the petitioner and the child lived together in the same household,
(3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and
(4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature. ...
In addition, recognition of a de facto parent is "limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child's life."

Finally, the court noted that the biological parent's constitutional rights are not infringed by the de facto parent doctrine because the first of the four de facto parent standards ("natural or legal parent consented to and fostered the parent-like relationship,") incorporates the constitutionally requisite deference to the legal parent.   As the court commented:
"The State is not interfering on behalf of a third party in an insular family unit but is enforcing the rights and obligations of parenthood that attach to de facto parents; a status that can be achieved only through the active encouragement of the biological or adoptive parent by affirmatively establishing a family unit with the de facto parent and child or children that accompany the family. In sum, we find that the rights and responsibilities which we recognize as attaching to de facto parents do not infringe on the fundamental liberty interests of the other legal parent in the family unit."