Washington. The petitioner in B.M.H.
was B.M.H.’s former stepfather, a category of petitioner already found ineligible
to assert de facto status in M.F. A.F.J.
had been placed into the custody of the
petitioner for foster care, in the context of
a dependency proceeding. This seemed
to clearly be a bar to seeking de facto
status, given that the child was technically placed in the petitioner’s care at the
behest of the state in the context of a dependency proceeding. With neither petitioner appearing to be a viable candidate
for adjudication of parentage under the
de facto doctrine, and with the statutory
gap identified in L.B. closed, what, if any,
viability did the doctrine have?
The biological mothers and amici curiae3 opposing the extension of the de facto doctrine in both cases presented these
(among other) arguments to the Court,
urging that the doctrine be limited only
to cases that are factually similar to L.B.,
and raising the constitutional concerns
identified by the Court in M.F.
However, the Court declined to adopt
this narrow interpretation — and effec-
tive abrogation — of the doctrine. Hold-
ing that both Holt and Franklin4 lacked
a meaningful remedy at law for estab-
lishing a parent-child relationship, the
Court opened the door for both parties
to do so under the de facto analysis in
the trial courts. In so holding, the Court
reaffirmed the policy it promoted in L.B.
— that “where the legislature remains
silent with respect to determination of
parentage because it cannot anticipate
every way that a parent-child relation-
ship forms, we will continue to invoke our
common law responsibility to ‘respond to
the needs of children and families of chil-
dren and families in the face of changing
realities.’” (In re B.M.H., 86895-6, 2013
WL 6212020 at 8.)
In declining to adopt a bright line rule
as to who can petition for de facto parent
status, the Court has provided for the
extension of the doctrine to petitioners
very unlike the original de facto
petitioner, Sue Ellen Carvin. The Court, in
declining to limit the doctrine to specific
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categories, relies upon the trial court’s
ability to determine who is a parent on
a case-by-case, fact-specific basis under
the L.B. factors. Does this open the door
for any person to seek an adjudication of
parentage of a child with whom they have
formed a loving, connected relationship?
In some respects, the answer to this
question is “time will tell.” As the de
facto doctrine continues to be litigated in
the trial courts, it can be reasonably expected that aggrieved parties will appeal,
thus putting the doctrine up for further
scrutiny in the appellate courts. However, B.M.H. and A.F.J., when considered
in the context of prior de facto cases, do
not lack guidance as to who can meritoriously seek a determination of parentage
under the doctrine.
The Court in both cases relied heavily on the first factor — consent to and
fostering of the parent-child relationship — in finding that the petitioners
had standing. The “consent” factor is a
meaningful limit, as it will not permit
a non-parent to proceed with a de facto
petition with regard to a child who has
two legal parents — because only one of
the parents could meaningfully consent
to a new partner becoming a “parent”
to a child. Indeed, this is what occurred
in M.F. We do not know the level of involvement that M. F.’s father had in M. F.’s
life, but this was not something that the
Court even considered in determining
that Corbin had no standing.
The consent factor is not just about
consenting to a familial relationship;
it is about a parent consenting to the
development of a parent-child
relationship. Our family courts have the ability
to distinguish between a parent promoting a healthy and bonded relationship with a relative or family friend, and
a parent who intends to create a true
parent-child relationship between their
child and a non-parent.
Finally, although there are presently
no “categorical bars” as to who may
petition for a determination of de facto
parentage, the L.B. factors place a high
burden on the petitioner to prove that
they undertook “a permanent, unequivocal, committed, and responsible parental
role in the child’s life.” So, although it can
be argued that the courthouse doors are
now open to “anyone” who wishes to file
a de facto parentage case, not just “
anyone” can prevail. NWL
