Holly and Hannah are going through a divorce. Hannah’s twelve-year-old son, Kyle, has known Holly since he was a toddler. Although Holly never formally adopted Kyle and her name is not on Kyle’s birth certificate, Holly loves Kyle as her own child and has spent considerable time on parental responsibilities. She’s heard of the status “de facto parents” and is curious to know whether 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 notion of de facto parents looks at an evolving question in family law: under what circumstances may a non-biological parent of a child (a sort of “parent substitute”) be entitled to visit with the child—sometimes in spite of the express preferences of the biological parent?

It has long been recognized that American parents enjoy the important privacy right of deciding how to parent their own children. This includes the right to direct the education and upbringing of the child, and it also impliedly includes the right to direct with whom the child may socialize and visit. Under what circumstances, then, might that parental right be curbed by the Court in order to allow a de facto parent to visit with the child?

There is no Massachusetts statute which controls regarding whether a de facto parent should be allowed visitation rights, nor any statute which controls non-biological parents’ visitation rights in general. (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 regarding artificial insemination of the birth mother, both attended all medical appointments, and the non-biological parent served as the birth mother’s birthing coach. Once the child was born, the two women co-parented; the plaintiff contributed financially to the household; and at one point the plaintiff served as the primary caregiver of the child.

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).