Washington's Recognition of Non-Biological Parental Relationships

Justin M. Sedell, Associate, McKinley Irvin, PLLC

Families can be complex, and Washington law is developing to recognize the changing definition of what makes a family. Traditional families, defined as a married mother and father with children, were the basis for the development of family law. As the definition of a family has expanded to include unmarried partners, grandparents, and others, the law has developed to provide parental rights to those that have taken on the responsibilities and benefits of parenthood.

Until recently, gay and lesbian parents did not have the ability to resort to court action to establish paternity of their non-biological children. The non-biological parent had no legal recourse to seek residential time with his or her children if the biological parent objected, and the biological parent did not have the ability to seek child support from the non-biological parent.

Recently, however, the Washington Supreme Court followed the lead of several other states by recognizing that non-biological parents may be entitled to establishment of parental rights equal to those of biological parents. In the case of In re the Parentage of L.B., two lesbian partners, Sue Ellen Carvin and Page Britain, were involved in a heavily contested custody battle. During their lengthy, committed relationship, the parties jointly decided to raise a child. After considering their options, the two decided to use artificial insemination and that Britain would give birth to their child. Their daughter, "L.B.," was born shortly thereafter. Both Carvin and Britain cared for L.B. equally, and L.B. referred to each of them as her mother. Unfortunately, when L.B. was six years old, the parties decided to end their relationship. Although their split was initially amicable, the circumstances soon soured, and Britain decided to deny her ex-partner any access to L.B., arguing that she had no legal relationship with the child and thus had no right to ever see her again.

The Washington Supreme Court disagreed, recognizing the rights of non-biological parents for the first time. The court created a new legal doctrine, entitled "de facto parentage," that permits non-biological parents to establish their parental rights to their children and seek custody or residential time with them. Conversely, the biological parent is able to seek child support from a de facto parent if that biological parent is the primary residential parent of the children.

To establish de facto parentage, the non-biological parent must prove four independent factors to the court:

That the biological or legal parent consented to and fostered the parent-like relationship of the non-biological parent;
That the non-biological parent and the child lived together in the same household;
That the non-biological parent assumed the obligations of parenthood without expectation of financial compensation; and
That the non-biological parent has been in a parental role for a length of time sufficient to have established a bonded, dependent, paternal relationship with the child.

Although the courts have yet to develop any further guidance on application of de facto parentage, presumably the law applies not only to gay and lesbian couples but to all unmarried parents where one partner is not the natural or adoptive parent of the parties' children. The law does not specifically limit anyone from seeking de facto parentage, but it requires claimants to meet a high burden before the court will establish de facto parentage. In some cases, grandparents are seeking to establish de facto parentage as an alternative to the legal doctrine of nonparental custody after stepping into the role of full-time parents to their grandchildren. As a new doctrine of law, many questions remain unanswered. For instance, the appellate courts have not yet ruled whether a child may have more than two legally recognized parents.

If you wish to establish de facto parentage of your child, or if you are faced with a de facto parentage claim that you want to defend against, it is important to consult with a family law attorney who is experienced in this developing area of the law. McKinley Irvin attorneys have litigated de facto parentage issues since release of the Supreme Court's decision and can explain alternative legal doctrines that may apply to your case. Additionally, several McKinley Irvin attorneys focus on representing members of the GLBT community and are sensitive to its unique legal concerns.

Please contact us for a consultation appointment to discuss the individual legal needs of your family. Whatever your specific circumstances may be, McKinley Irvin attorneys stand ready and willing to help you resolve your family law disputes in the best interests of your family.