As of January 1, 2025, the updated Massachusetts Parentage Act (MPA) brings crucial legal protections for children and families. The law now ensures that all children, regardless of their family’s formation, receive equal treatment. Since the original enactment of G.L. c. 209C in 1986, case law has evolved, reflecting societal and scientific advancements. However, relying solely on litigation created uncertainty. The MPA codifies protections for families formed through assisted reproduction, surrogacy, and IVF. This article focuses on de facto parent, a newly established legal status under G.L. c. 209C, sec. 25.
Who is a De Facto Parent?
The status of de facto parenthood first gained recognition in Massachusetts in 1999 with Supreme Judicial Court decision on E.N.O. v. L.L.M., 429 Mass. 824 (1999). After E.N.O., a person who could establish that he or she had established a parent-child relationship with a child could seek on order of visitation with the child. In the absence of statutory authority, this required the filing of a complaint in equity, and the most expansive outcome for a de facto parent, and the child, was a limited order of visitation. Under the MPA, a de facto parent who can satisfy the rigorous statutory requirements can establish legal parentage, on par with the biological parent(s), with identical rights and responsibilities.
A de facto parent is one who has established a parental relationship with a child despite not being their biological or adoptive parent, usually through a committed, long-term caregiving role within the child’s life. Examples include step-parents, close relatives, long-term caregivers, or non-marital partners in same-sex relationships. They must have provided care with the support of the child’s legal parent(s) and without expectation of compensation.
How does one establish De Facto Parentage?
To obtain legal parental rights, the petitioner (Plaintiff) must prove their eligibility through a Verified Complaint (signed under penalty of perjury). The official court form, available here, under General Law Section 209C, sec. 25(i) significantly reduce the burden on Plaintiffs by clearly setting forth the requirements through a series of check boxes.
Eligibility Requirements
- A living child, under that age of 18, and a living Plaintiff (legal parent status includes rights that extend after death, so establishing a “cut off” for filing creates certainty around those rights at the time of the death of either);
- The Plaintiff must have resided with the child as a regular member of the household for not less than 3 years, or 40% of the child’s lifetime, whichever is shorter, but at least for two years;
- The Plaintiff has provided consistent caregiving consistent with that which a parent would provide, including education care, health care, shaping the child’s daily routine, and addressing the child’s developmental needs;
- The Plaintiff has undertaken the full and permanent responsibilities of a parent, without expectation of payment (preventing paid caregivers such as nannies from seeking de facto status);
- The Plaintiff has held the child out as his or her own;
- The Plaintiff has established a bonded, dependent relationship with the child, and;
- The child’s parent(s) consented to the establishment of this relationship for at least six months, whether through 1) holding out the plaintiff as a parent of the child, 2) engaging in shared caregiving with the plaintiff, or 3) impliedly consenting through lack of engagement/support over a period of at least two years.
- The statute further includes the catchall requirement that establishing parentage of the plaintiff is in the child’s best interests.
If the plaintiff’s application is opposed, the court will hold an expedited hearing within sixty days, at which the Plaintiff must establish all elements above to proceed.
Presumptions against establishing De Facto Parentage
In order to protect against potential abuse by putative de facto parents, the statute also includes several presumptions against the establishment of parentage. A presumption against the establishment of parentage exists where any of the following is true:
- An abuse or harassment prevention entered against the Plaintiff, after an evidentiary hearing, involving the subject child, a parent of the child, or any other member of the child’s household;
- The Department of Children and Families supported an allegation of abuse against the Plaintiff with respect to the care of the subject child, or any other child in the household;
- The Plaintiff can only satisfy the requirements of the statute because of his/her status as a foster parent of the child;
- The Defendant parent is or was engaged in military service within the prior three years, or executed a military family care plan and, but for said plan, the Plaintiff would not be able to satisfy the requirement of the statute, or;
- The plaintiff engaged in duress, coercion or threats of harm to establish any requirement of the statute.
If the court at the expedited hearing finds, by a preponderance of the evidence, that any of the above applies, there is a rebuttable presumption against establishment of parentage.
What remedies are available to a De Facto Parent?
A successful claim of de facto parentage leads to full legal parentage. The scope of remedies available to the prevailing plaintiff in a de facto parent case far exceed that which was previously available by case law. In the past, the prevailing party remained in a second-class status as de facto parent, and only obtained the right to seek visitation. Like any other parent, a prevailing party can now seek:
- Custody
- Visitation/parenting time
- Support
- Change of the child’s name
- Issuance of a new birth certificate
It is important to note that adding a parent isn’t an indictment of another parent’s qualities and does not extinguish his/her parental rights. Under Massachusetts law, a child can have three (or theoretically, more) parents, all with concomitant rights to seek legal custody and parenting time, and the obligation to support the child financially.
Why is De Facto Parentage important?
This legal designation can be crucial for ensuring the rights of non-biological parents to make decisions about their child’s upbringing, including healthcare and education. In situations where the biological parent might not be able to provide care, children were previously vulnerable to being removed from the care of a person already acting in the role of a parent. Parental status creates important rights/benefits for children, including access to benefits such as health insurance and Social Security benefits, and rights to inheritance.
Status of Third-Party Equity Actions
Nothing in the MPA limits the existing right under G.L. c. 215, sec. 6 to establish visitation. Therefore, important people in a child’s life who cannot meet the rigorous requirement to be recognized as a parent under Section 25 may continue to pursue claims in equity to seek visitation with a child.
The Massachusetts Parentage Act marks a significant shift in family law, ensuring all children have access to the legal security of multiple committed caregivers. The new de facto parent provisions recognize modern family structures, offering children greater stability, financial support, and emotional security. If you believe you qualify as a de facto parent, consulting a family law attorney can help navigate the legal process and protect your rights.