De Facto Parenting: History & Washington State Law

De Facto parent with her childHistorically, child custody and visitation has only been granted to biological parents—in some cases, to official adoptive parents. However, as the definition of family has evolved in recent years, and as less traditional family structures have become more common, the court system has found that limiting custody to biological parents is not always the best solution and is not always in the best interest of the child.

In the last decade, Washington State has ruled in favor of several non-biological parents, which the state terms “de facto parents”.

The Parentage of LB

The issue of de facto parenting was first raged during a 2005 custody battle between a lesbian couple residing in Washington State. One woman had a baby with the assistance of artificial insemination and together they raised the child, LB, until she was six years old. At that time, they decided to end their relationship and a custody battle began. The Washington Supreme Court made the historic decision that both partners had rights—even though one person was a non-biological, non-adoptive parent. Why? Because the non-biological parent had acted in all ways like a parent to the child and had formed a parent-like bond with the child.

The Four-Part Test for De Facto Parents

Generally, to be considered a de facto parent, you must have acted like a parent to the child in all ways, for a significant length of time, and while living with the child. Specifically, in Washington State, the following guidelines must be met:

  1. The legal or biological parent consented to and fostered the parent-child relationship between the de facto parent and the child.
  2. The de facto parent and the child have lived together in the same home.
  3. The de facto parent assumed all obligations of parenthood without expecting any sort of compensation, such as financial compensation.
  4. The de facto parent has been parenting for a length of time that has resulted in a parent-like bond with the child.

Four Cases in Which You May Be Able to Argue That You Are a De Facto Parent:

  • Same-sex partners – In many same-sex partnerships across the nation, one non-biological partner is raising a child fully—but without legal rights. However, in Washington State—since the legalization of gay marriage—same-sex de facto parent child custody cases will likely become rare.
  • Stepparents – In most cases, stepparents are not considered de facto parents because two biological parents still exist and because the stepparent entered into the child’s life after the child’s birth. However, one recent case in Washington involved a stepparent who raised a child from birth after the biological father died during the biological mother’s pregnancy.
  • Men who are unknowingly raising another man’s child – While no cases have yet taken place under these circumstances, it is possible that a man who is raising a non-biological child without his knowledge could argue that he is the de facto parent.
  • Grandparents or other relatives – In theory, a grandparent or other relative could argue that they are a de facto parent. Of course, they would have to prove that they have a parent-like bond with the child, that they were allowed to form this bond with the child, and that they didn’t care for the child with the expectation of financial gain. They would also have to of lived with the child.

Establishing yourself as a de facto parent is still not common or easy—but it is a viable option in certain child custody and visitation situations. To learn more about your legal options, and whether you may be a de facto parent, contact our Bellevue family law office today—we’re standing by to help.

Molly B. Kenny
Founder and Principal Divorce Attorney
Molly B. Kenny's Bellevue family law office is conveniently located on Lake Bellevue Drive, making it easily accessible to those in the greater Seattle area. Our divorce and child custody lawyers help men and women get the information, guidance, and compassionate representation they need.
Law Offices of Molly B. Kenny