What families look like has changed dramatically over time. Historically, most children were raised in intact, different-sex, marital families. Indeed, even in 1960, almost three-quarters (73%) of children in the United States were living in this family structure.
Today, this is no longer the case. Fewer than half of all children here are living in intact, different-sex, married households. See Gretchen Livingston, Fewer than half of U.S. kids today live in a ‘traditional’ family, Pew Research: Fact Tank (Dec. 22, 2014), http://www.pewresearch.org/fact-tank/2014/12/22/less-than-half-of-u-s-kids-today-live-in-a-traditional-family/.This reality is the result of a confluence of developments. Fewer adults today are marrying. More children are born to unmarried women. Many children born to married couples will experience divorce. June Carbone & Naomi Cahn, Marriage Markets: How Inequality is Remaking the American Family 1 (2014).
Because of these and other changes in family form and life, a significant percentage of children—both marital and nonmarital—will be parented by people who are not connected to them through marriage or biology. These people may be stepparents, nonmarital partners of an existing parent, or extended family members. Experience and social science confirm that children rely on these caregivers for love and affection and to attend to their physical needs. Because functional parents can be so important to the lives of children, termination of these relationships can “prove devastating to [a] child and [c]ould result in long-term, adverse psychological effects to [a] child.” In re Custody of C.C.R.S., 892 P.2d 246, 258 (Colo. 1995) (en banc). As the Vermont Supreme Court recently put it: “It is hard to imagine how … an approach that allows for a complete and involuntary severing of a lifelong parent-child relationship could possibly promote children’s welfare. In many cases, the consequences of such a rule would be nothing short of tragic.” Sinnott v. Peck, 2017 VT 115, ¶ 30, No. 2015-426, 2017 WL 5951846, at *1 (Vt. Dec. 1, 2017).
Fortunately, the majority of states protect these functional parent-child relationships that are so important to so many children today. See, e.g., Conover v. Conover, 146 A.3d 433, 449 (Md. 2016) (“[A] majority of states, either by judicial decision or statute, now recognize de facto parent status or a similar concept.”). But see Jones v. Barlow, 154 P.3d 808, 810 (Utah 2007) (“We decline to extend the common law doctrine of in loco parentis to create standing where it does not arise out of statute.”).
Some states permit functional parents to seek custody or visitation under broad third-party visitation statutes. This is true, for example, in Hawaii, Minnesota, Montana, and Texas. A larger group of states recognize functional parents under common law equitable principles. These states range from Alaska to Nebraska to Arkansas to West Virginia to North and South Carolina. See, e.g., Courtney G. Joslin, Leaving No (Nonmarital) Child Behind, 48 Fam L.Q. 495 (2014). In addition, more and more states now recognize that such persons can be recognized as legal parents in some circumstances.
With regard to those states that protect functional parent-child relationships under equitable principles, different states use different terminology. Some states use the doctrine of de facto parentage; others rely on the doctrine of in loco parentis or psychological parent. Regardless of what they are called, the equitable doctrines generally require proof of an actual parent-child relationship and proof that that relationship was formed with the consent and encouragement of the child’s legal parent. For example, over twenty years ago, the Wisconsin Supreme Court adopted the following test in a case called In re H.S.H.-K.:
To demonstrate the existence of the petitioner’s parent-like relationship with the child, the petitioner must prove four elements:
533 N.W.2d 419, 421 (Wis. 1995). This is now one of the most commonly used tests for assessing whether the person is an equitable parent.
Over the years, some litigants and commentators raised various objections to these equitable parentage doctrines. One frequently cited objection is the “slippery slope” concern. That is, some claim that adoption of these doctrines would open up the floodgates and allow just about anyone to seek contact with a child. For example, in a case out of Washington State, the biological mother argued that if the court endorsed the de facto parent doctrine, “‘teachers, nannies, parents of best friends, … adult siblings, aunts, grandparents,’ and every ‘third-party … caregiver’ will now become de facto parents.” In re Parentage of L.B., 122 P.3d 161, 179 (Wash. 2005) cert. denied sub. nom, Britain v. Carvin, 126 S. Ct. 2021 (2006) (quoting petition for review). The Washington Supreme Court rejected this argument as a red herring. True third-party caregivers, the court explained, would not be able to fulfill the high bar required by these equitable parentage tests. Id. (stating that “recognition should be no easy task.”).
As courts across and around the country have explained, the criteria required under these equitable parentage tests enable courts to distinguish between true functional parents and other nonparental caregivers. See, e.g., Conover v. Conover, 146 A.3d 433, 447 (Md. 2016) (“As other courts adopting this test have recognized, these factors set forth a high bar for establishing de facto parent status, which cannot be achieved without knowing participation by the biological parent.”); Marquez v. Caudill, 656 S.E.2d 737, 744 (S.C. 2008) (“[T]he [H.S.H.-K.] test will limit the persons who may seek to be considered a psychological parent, but it will assist those who are worthy to be called such.”).
First, equitable parentage tests, including the H.S.H.-K. test discussed above, require the consent and participation of a legal parent. This is critical and worth repeating: the parent-child relationship must have been formed due to the voluntary conduct of the legal parent; the legal parent must have invited this person in and encouraged the person to become one of the child’s parents. As a result of this requirement, when the court extends rights to a de facto parent, “[t]he State is not interfering on behalf of a third party in an insular family unit but is enforcing the rights and obligations of … 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 re Parentage of L.B., 122 P.3d at 179 (footnote omitted).
Second, the H.S.H.-K test expressly excludes relationships that are developed with the expectation of financial compensation for the service provided. As the South Carolina Supreme Court explained, this requirement “guarantees that a paid babysitter or nanny cannot qualify for [equitable] parent status.” Marquez v. Caudill, 656 S.E.2d 737, 744 (S.C. 2008). Finally, the relationship is protected only if it has blossomed into an actual parent-child relationship. “[These] criteria preclude such potential third-party parents as mere neighbors, caretakers, baby sitters, nannies, au pairs, nonparental relatives, and family friends from satisfying these standards.” Rubano v. DiCenzo, 759 A.2d 959, 974 (R.I. 2000).
Despite these high substantive standards, some courts initially extended only fairly limited rights to functional parents under these equitable doctrines. So, for example, in H.S.H.-K., the Wisconsin Supreme Court held that de facto parents are entitled to seek visitation only. In more recent years, however, many courts have concluded that functional parents can seek custody as well. And, indeed, courts in states ranging from Washington to Maine have concluded that equitable parents stand in parity with legal parents for purposes of child custody and visitation. See, e.g., In re Parentage of L.B., 122 P.3d 161; C.E.W. v. D.E.W., 845 A.2d 1146, 1151 (Me. 2004).
Currently, there is a draft uniform law that codifies a test similar to the H.S.H.-K. test described above. The draft act, entitled the Uniform Nonparental Child Custody and Visitation Act, permits people who have consistently cared for children and formed bonded and dependent relationships to seek custody or visitation with those children. If the statutory criteria are met, the court is directed to award custody or visitation to the person if that is in the child’s best interests. More information about this uniform law project can be found by searching for the title of the draft act at http://www.uniformlaws.org.
As noted, an increasing number of states have taken additional steps to ensure that these important parent-child relationships are adequately protected. Specifically, in a number of jurisdictions today, a person who is functioning as a parent to a child but who is unconnected to the child through either biology or marriage, can be declared to be a child’s legal parent. These jurisdictions span the country, ranging from Maine to Kansas to New Mexico and on to California.
In some states, this protection is extended through the so-called “holding-out” provision. The holding-out provision has been included in the Uniform Parentage Act since its first promulgation in 1973. The holding-out provision permits a court to declare a person to be a legal parent based on that person’s conduct of living with the child and presenting the child to others as his or her own child. See, e.g., Unif. Parentage Act § 4(a)(4) (Uniform. Law Comm'n 1973) (hereinafter UPA); UPA § 204(a) (1) (2002); UPA § 204(a)(2) (2017). The parentage schemes in many states include a holding-out provision. Courtney G. Joslin, Nurturing Parenthood Through the UPA (2017), 127 Yale L.J. F. 589, 598 (2018) (noting that “[a]pproximately nineteen states— ranging from Montana to Kansas to Hawaii to Rhode Island—enacted the UPA (1973) in whole or in significant part [and that] eleven states—ranging from Alabama to Wyoming to Texas to Maine—enacted the UPA (2002).”).
In the last decade, state supreme courts in a number of states—including California, Colorado, Massachusetts, New Hampshire, and New Mexico—have concluded that a person can be declared a legal parent under the holding-out provision even if the person is not a genetic parent. Other states, including Kansas, reached similar conclusions under other parentage provisions. Frazier v. Goudschaal, 295 P.3d 542 (Kan. 2013). As the New Hampshire Supreme Court explained, these decisions are “[c] onsistent with the … policy goal[ ] … that [t]he paternity presumptions are driven, not by biological paternity, but by the state’s interest in the welfare of the child and the integrity of the family.” In re Guardianship of Madelyn B., 98 A.3d 494, 500–01 (N.H. 2014) (citation and internal quotations omitted). Courts in these states have held that both men and women can be recognized as parents under the holding-out provision.
In an attempt to push back against these decisions, litigants and commentators sometimes claim that state parentage rules only recognize parentage based on biology or adoption. For example, in a recent case out of Arizona, a biological mother argued that her former partner could not be recognized as a parent because the former partner was not related to the child through either biology or adoption. See, e.g., Petitioner’s Supplemental Brief, McLaughlin v. Jones in & for the Cty. of Pima, No. CV-16-0266-PR, 2017 WL 2874198, at *4–5 (Ariz.) (“To date, the legislature has never extended parentage beyond biology or adoption.”). The Arizona Supreme Court rejected this argument. As the Arizona Supreme Court recognized, the biological mother did not accurately describe Arizona parentage law. Arizona, like all other states, recognizes as parents a range of people who are not connected to children through biology or adoption. McLaughlin v. Jones in & for Cty. of Pima, 401 P.3d 492, 498 (Ariz. 2017). See also, e.g., Pavan v. Smith, 137 S. Ct. 2075, 2078 (2017) (rejecting the state of Arkansas’ argument that their birth certificates were “simply a device for recording biological parentage”).
Treating individuals who are functioning and relied upon as parents as legal parents is a critical advancement from the child’s perspective. Recognizing such a person as a legal parent means that the child is entitled to all of the protections that a child is normally entitled to receive from and through a parent. This includes, for example, the right to receive Social Security and workers’ compensation benefits in the event the parent becomes disabled or dies. And, of particular importance, it also means that the parent has the same obligation to support the child as any other legal parent. See, e.g., Courtney G. Joslin, Protecting Children(?): Marriage, Gender, and Assisted Reproduction, 83 S. Cal. L. Rev. 1177 (2010) (discussing how children may not be entitled to these critical financial protections through functional parents who are only recognized under equitable doctrines).
The most recent revision of the Uniform Parentage Act, UPA (2017), furthers this trend in the law. UPA (2017) continues to include the “holding-out” provision, under which a person unconnected to a child through marriage or biology can be recognized as a parent if he or she lived with and parented the child for the first two years of the child’s life.
In addition, UPA (2017) includes a new provision—the de facto parent provision. This provision is modeled on the laws recently enacted in Delaware and Maine. De. Code Ann., tit. 13, § 8-201(c); Me. Rev. Stat., tit. 19a, § 1891. The UPA’s new de facto parent provision, section 609, provides that a person claiming to be a de facto parent can petition to be recognized as a parent. Section 609 includes heightened pleading and standing requirements for such persons. Ultimately, to be recognized as a parent, the individual must prove by clear and convincing evidence a number of factors, including that the individual functioned as a parent to the child for a significant period and that he or she established a bonded and dependent relationship. Once recognized as a parent, such a person has the same rights and responsibilities as any other legal parent. More information about UPA (2017) is available at https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=e4a82c2a-f7cc-b33e-ed68-47ba88c36d92&forceDialog=0.
Some parties and policy makers have argued that statutes or other doctrines that permit a court to recognize and extend protections to functional parents over the objection of a (or another) legal parent raise constitutional concerns. Those raising such concerns typically invoke the Supreme Court’s 2000 decision in Troxel v. Granville, 530 U.S. 57 (2000).
Troxel involved a request for expanded visitation by paternal grandparents after their son committed suicide. The mother did not preclude visitation by the grandparents altogether, but she was not willing to give the grandparents as much visitation as they requested. The grandparents then sued under the relevant Washington statute, Wash. Rev. Code § 26.10.160.
The case produced six separate opinions and no majority opinion. In her plurality opinion, Justice O’Connor struck down the statute as applied in the case. In holding the statute unconstitutional as applied, Justice O’Connor relied on a number of specifics about the statute, as well as the facts and procedural history of the case. First, “[t]he Washington nonparental visitation statute [wa]s breathtakingly broad,” permitting “any person” to seek visitation “at any time” under a best interest of the child standard. Few, if any, other states have statutes that are so sweeping. Next, Justice O’Connor noted that the trial court’s “order was not founded on any special factors.” Moreover, not only did the trial court give no “special weight” to the mother’s opinion, “it appears that the Superior Court applied exactly the opposite presumption.” Finally, Justice O’Connor noted that the mother had not sought to deny visitation altogether. “Considered together,” she held, “the combination of these factors demonstrates that the visitation order in this case was an unconstitutional infringement on [the mother’s constitutional rights].”
Thus, rather than declare new, sweeping principles of constitutional law, Justice O’Connor issued a very case-specific holding. Moreover, and importantly, Justice O’Connor expressly declined to decide whether “a showing of harm or potential harm” was required before a court could award visitation to a nonparent over the objections of a fit, legal parent.
Other members of the Court more emphatically rejected a harm standard. Justice Stevens, for example, said that a rule requiring a showing of harm in all third-party visitation cases “finds no support in this Court’s case law.” And indeed, Justice Stevens went on to suggest that such a standard might violate the child’s interest in the continuation and protection of an established parent-child relationship. Children, Justice Stevens explained, have their “own complementary interest[s] in preserving relationships that serve [their] welfare and protection.”
Justice Kennedy also strongly rejected a general harm requirement, stating that such a rule “is too broad to be correct.” Justice Kennedy went on to suggest that in some cases, such as cases that involve de facto parents, application of a best interests of the child standard may be appropriate. “In my view,” Justice Kennedy wrote, “it would be more appropriate to conclude that the constitutionality of the application of the best interests standard depends on more specific factors. In short, a fit parent’s rights vis-à-vis a complete stranger is one thing; her right vis-à-vis another parent or a de facto parent is another.”
In line with Justice Kennedy’s suggestion in Troxel, most courts deciding nonparent custody and visitation actions post-Troxel have distinguished between people who have parent-like relationships with children and those involving true third parties. With regard to actions brought by people who are functioning as parents, almost every court has concluded that Troxel does not preclude states from protecting those parent-child relationships. As the Maryland Supreme Court wrote in 2016: “[N]umerous courts have declined to treat Troxel as a bar to recognizing de facto parenthood or other designations used to describe third parties who have assumed a parental role.” Conover v. Conover, 146 A.3d 433.
This was the conclusion that the New Jersey Supreme Court came to almost twenty years ago, just after Troxel was decided. As the New Jersey court explained, in cases involving de facto parents, the parent-child relationship between the de facto parent and the child was formed because of the voluntary actions of the legal parent who allowed that third party in and encouraged that person to be part of the family. As the court explained, in such cases, “the legal parent’s expectation of autonomous privacy in her relationship with her child is necessarily reduced from that which would have been the case had she never invited the third party into their lives.” V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000). Accordingly, in such circumstances, protecting that parent-child relationship that resulted from the legal parent’s actions “should not be viewed as an incursion on” the legal parent’s rights. See also Mason v. Dwinnell, 660 S.E.2d 58, 69 (N.C. 2008) (“As the South Carolina Court of Appeals has recognized: ‘[W]hen a legal parent invites a third party into a child’s life, and that invitation alters a child’s life by essentially providing him with another parent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced.’”) (quoting Middleton v. Johnson, 633 S.E.2d 162, 169 (S.C. Ct. App. 2006)).
The correctness of that conclusion was recently reaffirmed by the Maryland Supreme Court in the Conover case, which similarly explained:
The de facto parent doctrine does not contravene the principle that legal parents have a fundamental right to direct and govern the care, custody, and control of their children because a legal parent does not have a right to voluntarily cultivate their child’s parent-type relationship with a third party and then seek to extinguish it.
Conover, 146 A.3d at 447. Moreover, unlike the situation in Troxel, cases involving de facto parents are ones that necessarily turn on “special” or “extraordinary circumstances.” Situations where a person is functioning as a parent to a child due to the consent and participation of a parent are ones that are qualitatively different from cases involving other third parties.
Troxel also does not bar a state from recognizing a functional parent as a legal parent. Troxel, courts explain, involved a visitation action between a nonparent and a parent. Troxel simply does not speak to and is not relevant to the question of when a state can recognize an individual as a legal parent. This was the conclusion the Delaware Supreme Court came to in a case in which a functional parent sought recognition as a legal parent under the state’s statutory de facto parent provision. Smith v. Guest, 16 A.3d 920, 931 (Del. 2010). “Troxel does not control these facts,” the court declared. Troxel was a case in which “a third party having no claim to a parent-child relationship … s[ought] visitation rights.” The case before it, the court explained, was one in which the person was seeking a determination that she was a parent. If declared to be a legal parent, she “would have a co-equal ‘fundamental parental interest’ in raising [the child].” As such, the other legal parent’s “due process [Troxel] claim fail[ed] for lack of a valid premise.”
Many children today are cared for and raised by people who are unconnected to them through biology or marriage. These individuals often form parental bonds that are just as important to children as any other parental bonds. And just as would be true with other parental relationships, the termination of these parent-child relationships can subject children to trauma during an already difficult time in their lives. Fortunately, most states have found ways to protect children from this harmful result.
And, indeed, the trend over time has been to extend greater recognition and protection to these relationships. In the past, states were more likely to protect these relationships under equitable doctrines. More recently, states across the country have concluded that such persons can be recognized as legal parents under their statutory parentage provisions. The most recent revision to the relevant uniform act—UPA (2017)—follows and furthers this trend.
By recognizing functional parental relationships as legal parental relationships, states not only protect children from the trauma of losing a parent, they also ensure that children will be entitled to access the critical financial benefits that flow from and through legally recognized parents.
