March 4, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
The concept of the “de facto” parent is creeping into the margins of American law. Its future of course is unclear as are its consequences for shared parenting. This article deals with a recent case out of Wyoming that educates readers about the concept (Justicia.com, 3/3/15).
In a nutshell, the notion of the de facto parent arose in order to accommodate the parenting desires of one partner to a lesbian couple. In those cases, two women decided to have a child, found a sperm donor, inseminated one of the women who became pregnant, carried the pregnancy to term and – presto! – little Andy or Jenny had two mommies. (Gay men with children usually adopt them, so neither is a biological parent.)
But only one had a biological relationship to the child. The other assumed she would be an equal parent and did her share or more of the hands-on child rearing and of course the child came to think of her as one of its parents.
So, when the pair split up, the question arises of the non-biological “mother’s” legal rights and duties. Could she demand custody? Visitation? Could the biological mother demand child support from her?
The law had a ready answer to all those questions – “No.” Just like a stepparent, she had no biological relationship with the child and therefore neither rights nor duties.
So the law in some states accommodated the non-biological mother’s desires, a solution that, in many cases seemed altogether just. After all, if we really care about the best interests of children, it makes little sense to pretend that a person who has performed all the duties of parenthood and whom the child loves and relies on exactly as it would a parent, is legally a stranger to it.
Thus was the notion of the de facto parent born, but even so, de facto parents don’t have full parental rights. They can seek an order of visitation, but not of custody. They occupy a middle status, somewhere between biological parent and non-parent.
Now, many people might point out that unmarried fathers in many jurisdictions already stand on that middle rung of the parenting ladder. We see time and again that a single dad, in order to have legal rights to his child has to prove his bona fides. He has to demonstrate to a court that he’s done all he can to establish and maintain a meaningful parent-child relationship with his offspring. That’s all true, but only for biological fathers. For the most part, if his DNA isn’t part of the child’s makeup, he’s out of luck.
Enter L.P., the father in the Wyoming case. He and L.F. had an off-again/on-again relationship that began when she was pregnant by another man, although L.P. swore he didn’t know that when his relationship with L.F. began.
Whatever the case, he was there at the hospital when L.F. gave birth to a son, K.E.P., who was named after L.P.’s brother and had L.P.’s last name. L.P.’s name was on the birth certificate and the two lived together and raised the little boy for something under two years.
That’s when L.F. took the child and disappeared. L.P. enlisted the police in a frantic search for her and the child he believed was his son. Interestingly, they were finally located in a domestic violence shelter despite there never having been any allegations of violence or abuse by L.F. against L.P. (Readers may remember the case of Lee Bartell-Dimm who twice abducted her child with the assistance of DV shelters. At the time, a private detective who specializes in finding children kidnapped by their parents said it’s commonplace for DV shelters to abet the abduction of children by mothers.)
L.P. moved to an apartment across the street from L.F. and continued to parent K.E.P. That arrangement lasted for about five years. Then L.F. attacked L.P. who got a restraining order against her. He then took K.E.P. and moved to Washington State.
L.F. filed an action in court to declare L.P. not the parent of the child. DNA testing revealed that he is not the biological father, so legally, L.P. was stuck. For single fathers, the law requires both a biological connection to a child plus sufficient hands-on parenting to convince a judge that remaining in the child’s life is in the child’s best interests. L.P. failed the first requirement.
So, among other things he claimed he was the child’s de facto parent, a legal concept that’s never been established in Wyoming. He lost, as, in my opinion, he should have. The Wyoming Supreme Court was faced with L.P.’s request to make new law, law that the state legislature has so far failed to enact. This is a classic situation in which it is appropriate for the legislature to consider the matter of adopting de facto parenting or not. It is not one in which a court should make new law.
Still the issues raised by the case and the prospect of de facto parenting are several.
For one thing, with de facto parenting as with so much else in family law, fathers’ rights are once again in mothers’ hands. For example, to prove oneself to be a de facto parent, one must have lived with the biological parent for at least two years. But if the biological mother doesn’t want the man (or her female paramour) to live with her, then he can’t be the child’s de facto parent regardless of how much parenting he does or how much the child loves him.
Speaking of which, many readers will have noticed that the phrase “best interests of the child” is noticeably missing from the court’s opinion. That’s because, as the Justicia article makes clear,
A child’s best interests are only relevant when a person seeking custody has proven parental rights. L.P., after these adverse rulings, was a legal stranger to KEP, despite his longstanding relationship with him.
Hmm. That’s strange. We’ve seen many times before that the concept of the “best interests of the child” is utterly arbitrary, subject to the whims and biases of individual judges. Some judges think children should maintain real relationships with both parent following divorce. Others are blatantly pro-mother/anti-father. In virtually all cases, judges receive little-to-no training in the science on shared parenting. And at least in Canada, the surest predictor of child custody is the sex of the parent; mothers get custody, fathers don’t, as researcher Paul Millar discovered after reviewing nationwide data on custody cases. That’s true despite the fact that there is no correlation between maternal custody and child well-being.
That courts simply abandon even the notion of a child’s best interests in the absence of a finding of legal parental rights is more of the same. The L.P. case demonstrates the matter well. There’s little doubt that K.E.P.’s best interests lie in a continuing relationship with the man he considered to be his dad. And yet, because the law grants a man in L.P.’s position no legal rights, all of a sudden, the child’s interests go out the window. How this makes sense is anyone’s guess.
Still, as I said, the court made the right decision for the reasons I stated above.
But there’s yet another problem with this case. There’s a child and he must have been sired by someone. Who is that someone? Apparently only one person knows – L.F. The actual father was never contacted and never given notice of the proceedings in this case. As usual, there is no legal obligation on her part to inform the father of his child. But if L.F. ever wants anyone to pay child support, he’s the man who’ll do so. And if that ever happens, his parental rights, so long held in abeyance by L.F.’s unilateral decision to keep him out of his child’s life, will spring to life like flowers after a spring rain.
All that is to say that, as interesting as this case is and as cogent as the court’s opinion, it all misses the point. The point is how we got here in the first place. How did L.P. come to be so involved in K.E.P.’s life? Why was his name on the birth certificate for a child who wasn’t his? Why was he allowed to play the hands-on dad for the first eight years of the boy’s life, only to be snatched away by a mother once again abetted by the law?
The answer is simple. All that happened because we refuse to do the obvious – establish paternity at birth. We have the means to do that, and had it happened in this case, look at all the time, energy, money and heartache that would have been saved. Most importantly, an innocent little boy would never have become attached to a man who would eventually be taken away from him. L.P. would have known from the start that he’s not the dad; the biological father would have known that he is the dad; that man could then have taken up his parental rights and duties in whatever way he wanted and a court allowed.
Any way we slice it, that would have been a lot more sensible and far less hurtful to a child than turning legal backflips about a doctrine that should never have come up.
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