The question of who is and is not a child’s legal parent is more complex than you might expect and will be explored through a series of posts. A determination of parentage is governed by the Uniform Parentage Act, found at Chapter 8 of Title 13 of the Delaware Code, and the Delaware Family Court has original jurisdiction to resolve all disputes of maternity or paternity. Today, I want to focus on the most controversial of the six ways a mother-child or father-child relationship may be established under Delaware law, that is the “de facto parent” statute.
What is a “de facto parent”?
On June 16, 2009, Delaware Governor Jack A. Markell signed into law Senate Bill 84 modifying Title 13, section 8-201 of the Delaware Code to include a statutory provision for "de facto parent" status. Senate Bill 84 amended the Uniform Parentage Act to give the Family Court the statutory authority to make a determination that a man or woman is a "de facto parent" of a child. This establishes a legal parent-child relationship that would not otherwise exist, unless the non-parent were to adopt the child.
The significance of a determination of "de facto parent" legal status cannot be overstated, as the determination confers upon a non-parent the exact same legal status as a biological or adoptive parent. Once a determination is made, a "de facto parent" is given all of the rights and responsibilities of a natural or legal parent and can only be undone by a termination of parental rights.
Why was the “de facto” parent status created?
This statute was born out of a custody decision issued by The Honorable Michael K. Newell, now Chief Judge of the Family Court, on January 22, 2008 to order to give two former same-sex partners joint custody and shared residency of a minor child. The minor child was not the biological child of either woman, but rather the child was adopted by one of the women while they were in a committed relationship.
On appeal to the Delaware Supreme Court, the Justices reversed the Family Court custody order in its decision captioned Smith v. Gordon, finding that Chief Judge Newell had no authority to confer upon the same-sex partner "de facto parent" status without explicit statutory authority. The Delaware Supreme Court held that providing such relief was a public policy decision for the General Assembly to make, and not the Family Court judges. On remand to the Family Court, the petition for custody was dismissed because the same-sex partner lacked standing as a non-parent to petition for custody.
Just four months later, Senate Bill 84 was signed into law and the same-sex partner re-filed her petition for custody. She was once again granted "de facto parent" status, joint legal custody and shared residency of the minor child by Chief Judge Newell. On appeal, the Delaware Supreme Court upheld this Family Court custody order in a decision captioned Smith v. Guest, finding the "de facto parent" statute constitutional.
But is the “de facto parent” status constitutional?
With six years of Family Court case law now available for review, it is clear that the Family Court has struggled with its application of the "de facto parent" statute, especially as applied to unmarried heterosexual couples.
Former Family Court Judge John E. Henricksen was the first to question the constitutionality of the statute, indicating it may violate the United States Supreme Court decision of Troxel v. Granville in a situation where the child already has two fit parents who both oppose the determination of "de facto parent" status. The case involved two respondent biological parents and a petitioning former boyfriend of the child’s mother. Judge Henricksen refused to create a third legal parent for a child who already had two fit biological parents. Judge Henricksen distinguished the Smith v. Guest case on its facts, noting that it was unclear whether the Delaware General Assembly or Delaware Supreme Court contemplated a scenario where a child would have more than two parents.
Other Family Court judges have applied the "de facto parent" status to grant legal parent status to former boyfriends/girlfriends, same-sex partners and spouses of the natural parent, creating a second and third legal parent for a child. None of these Family Court orders were appealed to the Delaware Supreme Court.
Is it or isn’t it?
I agree with Former Family Court Judge Henricksen that the "de facto parent" statute is unconstitutionally broad for the reasons stated in Bancroft v. Jameson. Moreover, the statute does not take into account how a parent can safeguard against accidentally conferring "de facto parent" status to a paramour or spouse who naturally takes on care-taking role due to their proximity to the child and relationship with the child’s parent.
The "de facto parent" statute gives us no guidance on this issue. There are only three factors the Family Court needs to establish a "de facto parent": (1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent; (2) Has exercised parental responsibility for the child as that term is defined in § 1101 of this title; and (3) Has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.
How we could address the issue?
One way to address this problem would be to narrow the “de facto parent” statute by requiring present-day support from all of the child's legal parents at the time of the hearing on the petition for de facto parentage determination. This would require a revision to the first factor of the "de facto parent" statute by the Delaware General Assembly to state, for example: "Has the support and consent of the child's parent, if the child has only one legal parent, or parents, if the child has more than one legal parent, who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent."
This revision is consistent with the two-parent veto requirement of Troxel v. Granville and which was included in Delaware's third-party visitation statute. The third-party visitation statute was coincidentally passed on the same day as the "de facto parent" statute.
Is the “de facto parent” statute necessary today?
Another, and possibly a better, way would be to strike the statute completely. Striking the "de facto parent" statute from the Uniform Parentage Act would not be as significant of a change to Delaware law as it might seem at first blush.
That is because the Delaware General Assembly has now resolved what I believe to be the real underlying issue in Chief Judge Newell's custody case: prior to 2012, same-sex partners were denied the legal right to jointly adopt a minor child or adopt his or her same-sex partner's child as a step-parent, unlike a heterosexual spouse.
However, effective January 1, 2012, Delaware started recognizing civil unions between same-sex couples as legal relationships, pursuant to Civil Union and Equality Act of 2011. Under the new law, persons in civil unions have the same rights, benefits, protections and responsibilities as married persons per Delaware law. Same-sex partners in civil unions, and subsequently same-sex marriages, now have the same rights as any married heterosexual couple to jointly adopt a child or file for a second parent adoption as the child’s stepparent.
The issues presented in Chief Judge Newell's case from 2008 have been appropriately addressed by the Civil Union and Equality Act of 2011 and same-sex marriage legislation that Governor Markell signed into law on May 7, 2013. The same-sex marriage legislation converts civil unions to marriage and recognizes civil unions and same sex marriage from other jurisdictions. The law went into effect July 1, 2013. Now, same-sex partners, just like their heterosexual counterparts, have equal opportunity through adoption to achieve legal parent status. The "de facto parent" status was created by Family Court judges long before Chief Judge Newell applied it in 2008 in his custody order as an end-around for same-sex partners who were not given the same legal rights in Delaware to marry and adopt children.
It is my firm belief that the Delaware General Assembly addressed the wrong problem in 2009 and now we may need further legislation to correct the wrongs created by the "de facto parent" statute. This exact issue is pending before Family Court Judge Alan N. Cooper in one of my cases, where I argued that the “de facto parent” statute was unconstitutional on its face and as applied in a case involving two fit legal parents. A decision is anticipated by December 1, 2015 with an update to this post to follow.
Update as of April 14, 2016
Family Court Judge Alan N. Cooper passed away on October 18, 2015, after serving ten years on the bench. It became the responsibility of his colleague, Family Court Judge Aida Waserstein, to issue a decision in the case referenced above where I had questioned the constitutionality of the “de facto parent” statute.
To briefly summarize the facts of the case, my client’s husband petitioned for “de facto parent” status of her under two years-old child after they separated and he was ruled out as the biological father through genetic testing.
At the time of Judge Waserstein’s decision, the parties were divorced, the former spouse had not seen the child for about a year and a half and my client’s boyfriend had acknowledged paternity. Judge Waserstein denied the former spouse's request on the facts of the case without addressing the larger question of whether the “de facto parent” statute is constitutional. No appeal was taken to the Delaware Supreme Court.
While this decision was a victory for my client, the mother of the child, it sheds no light on the bigger issue: Can a child have more than two fit legal parents in the State of Delaware?