Holly and Hannah are going through a divorce. Hannah’s twelve-year-old son, Kyle, has known Holly since he was a toddler. Holly has never formally adopted Kyle, and her name isn’t on his birth certificate. However, she loves him as her own child. Holly has also spent considerable time fulfilling parental responsibilities. She has heard of the status “de facto parents.” She is curious to know if she qualifies. Holly would like to keep seeing Kyle and wants to play an active part in his life. What options does she have?
The concept of de facto parents addresses a key question in family law. Under what circumstances can a non-biological parent—acting as a “parent substitute”—have visitation rights? This may occur even against the biological parent’s preferences.
American parents have long held the important right to decide how to raise their children, including directing their education and upbringing. This right also implicitly includes the ability to control with whom the child may socialize and visit. Given this, under what circumstances might the Court limit this parental right to allow a de facto parent to visit with the child?
Massachusetts has no statute governing de facto parent visitation rights. Additionally, no statute addresses non-biological parents’ visitation rights. (In fact, the line of cases looking at visitation rights for grandparents has considered some of these same questions.) However, two important cases have reviewed these same questions. A de facto parent has been defined by the Massachusetts courts as “one who has no biological relation to the child but has participated in the child’s life as a member of the child’s family. The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent.”
In the case of ENO v. LMM,[1] the Court considered a petition for visitation by the former same-sex partner of a child’s birth mother. The two women made joint decisions about artificial insemination for the birth mother. Both attended all medical appointments. The non-biological parent acted as the birth mother’s birthing coach. After the child was born, the women co-parented. The plaintiff contributed financially to the household and, at one point, served as the child’s primary caregiver.
When the parties’ relationship deteriorated, the non-biological parent petitioned the Court for visitation rights, among other things. The Probate and Family Court judge ordered visitation, and the defendant birth mother appealed. The Supreme Judicial Court ultimately decided that the judge had the authority to order visitation rights for a de facto parent.
In the case of Youmans v. Ramos,[2] the Court likewise considered and granted visitation rights for a de facto parent, holding that the grant of visitation did not violate the parental rights of the biological father. In that case, the child lived for most of her life with her maternal aunt, who was appointed the child’s guardian after the child’s mother died. The biological father, who lived in Georgia, successfully sought to terminate guardianship and was granted custody of the child. However, the Court held that the Probate and Family Court judge had the authority to order visitation for the aunt.
“In every case in which a court order has the effect of disrupting a relationship between a child and a parent, the question surely will arise whether it is in the child’s best interest to maintain contact with that adult. Whether such contact in any given case is wise is a matter that should be left to the discretion of the judge,” the Court noted. “The evidence of the parent-child relationship and strong emotional ties between Tamika and her aunt fully warrant the judge’s order, more particularly because this young girl was being moved to a new environment to live with a man with whom she had spent precious little time in her life.”[3]
Questions of custody or adoption brought by de facto parents get even trickier. In a 2009 case where a de facto parent brought a claim for guardianship of the child and claimed the biological parent was unfit to care for the child, the Supreme Judicial Court declined to order guardianship to the de facto parent. The Court noted that previous cases had dealt with only visitation, not issues of custody. The consideration of whether the biological parent is unfit, the Court noted, hinges on what is in the best interests of the child—the general standard for all matters of custody.[4]
In dealing with the difficult issues surrounding de facto parents, it is imperative that the parties obtain competent legal advice. If you have questions about these issues in your case, schedule a free consultation with our office. Call 978-225-9030 during regular business hours or complete a contact form here, and we will get back to you at our earliest opportunity.
[1] E.N.O. v. L.M.M., 429 Mass. 824 (1999).
[2] Youmans v. Ramos, 429 Mass. 774 (1999).
[3] Id., at 783-784
[4] R.D. v. A.H., 454 Mass. 706 (2009).