The Real Issue of Defacto Parenting - Not Just About Step Persons

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Are Stepparents Real Parents?

A Supreme Court decision involving lesbian parents could affect millions more American families

By: Po Bronson

Posted Wednesday, May. 17, 2006

This week the Supreme Court let stand a ruling that ultimately could affect as many as one-third of all Americans — anyone in a stepfamily. But you'll probably never realize it from any news reports on the ruling.

The case comes out of Washington State. Sue Carvin and Page Britain were lesbians living together since 1989. Their baby, L., was born in 1995, using an at-home artificial insemination kit and some sperm donated from their gay friend. Page Britain carried L. and gave birth, but Sue Carvin became the stay-at-home mom while Page worked to support the family. Their child called Sue "Mama" and Page "Mommy."

For several years they were a model of lesbian co-parenting. But Page grew upset that Sue didn't earn much money, and Sue was hurt that Page didn't recognize the value of her sacrifice. They split up when L. was seven years old. Ever since, they've been fighting for custody in the courts. Or sort of. Because the courts couldn't agree on whether Sue Carvin even had the right to fight for custody. She nurtured the child, but she wasn't the biological mother. So what was she, in the eyes of the law?

Washington State decided that Sue Carvin has the right to argue she's a "de facto" parent. This new classification can apply to any non-biological parental figure — and it specifically mentions stepparents. So while the case appears on first glance to be about gay-and-lesbian rights, it may have a far broader impact.

In the last few years, state family courts have tried to accommodate the stepparents and stepchildren who appear before them, without granting so much that it subtracts rights from a biological parent. In Colorado a stepparent can now sign the form that allows a minor to apply for a driver's license. And in Oregon, a stepparent can petition the courts for visitation of former stepchildren, if that marriage has ended. In Arkansas, it's even theoretically possible now for a stepparent to win custody over a biological parent. But in each state it's a different story, and many states are still in denial.

So a stepmother can take a month off work to care for her sick stepson, thanks to the federal law on Family Leave. But if she has to take her stepson to the emergency room, state law might prevent her from authorizing medical treatment. And if her son ends up dying due to hospital negligence, she can't sue.

The legal field is sitting on a huge time bomb. One-third of Americans are just one unfortunate circumstance away from ending up in court demanding their rights — where they will be told that those relationships aren't real, and don't count.

The U.S. Supreme Court has never been pressed to rule whether a stepparent is a real parent, and if so, under what conditions. But when it declined to review Britain v. Carvin, Washington State's test for "de facto" parents instantly became a model for other states to replicate. Through a case everyone thought was about gay rights, stepfamilies just opened the door to the recognition they truly deserve.

Over the next 10 years, there will be an explosion of cases testing just how "real" stepparents are. This will never get the attention surrounding same-sex cases, because stepfamilies are just as populous in red states as blue, and no politician can use it to their advantage. Nor are stepfamilies subjected to the same degree of prejudice. Stepparents might be vilified, but they are vilified one at a time — not as a class. However, the systematic bias against them is very real.

Just as the law prefers parents to be one male and one female, the law prefers to limit the number of parents to two. Maybe this is because two is the number of people it takes to make a child in the first place. Maybe it's because all the government forms are already printed with two signature lines. Maybe it's because two worked so well for us for so long. But that hasn't been the reality for several decades, and it's time for the law to catch up.

While we closely monitor how gay rights are granted and taken away, we pay almost no attention to the fact that stepparents are in the same legal limbo. Despite being ubiquitous, step-relationships are rarely recognized by the law. In most states, stepparents are considered "legal strangers" even if they have cared for and supported a stepchild for years. They have almost no official responsibility and barely any rights.

What kind of rights are they deprived of? Some are remarkably banal. For instance a stepparent can't sign a child's school report card or field-trip permission form. Others are significant. A stepfather can't include his stepdaughter on his family health insurance plan, for example. And she can't inherit from him when he dies.

In the last few years, state family courts have tried to accommodate the stepparents and stepchildren who appear before them, without granting so much that it subtracts rights from a biological parent. In Colorado a stepparent can now sign the form that allows a minor to apply for a driver's license. And in Oregon, a stepparent can petition the courts for visitation of former stepchildren, if that marriage has ended. In Arkansas, it's even theoretically possible now for a stepparent to win custody over a biological parent. But in each state it's a different story, and many states are still in denial.

So a stepmother can take a month off work to care for her sick stepson, thanks to the federal law on Family Leave. But if she has to take her stepson to the emergency room, state law might prevent her from authorizing medical treatment. And if her son ends up dying due to hospital negligence, she can't sue.

The legal field is sitting on a huge time bomb. One-third of Americans are just one unfortunate circumstance away from ending up in court demanding their rights — where they will be told that those relationships aren't real, and don't count.

The U.S. Supreme Court has never been pressed to rule whether a stepparent is a real parent, and if so, under what conditions. But when it declined to review Britain v. Carvin, Washington State's test for "de facto" parents instantly became a model for other states to replicate. Through a case everyone thought was about gay rights, stepfamilies just opened the door to the recognition they truly deserve.

Over the next 10 years, there will be an explosion of cases testing just how "real" stepparents are. This will never get the attention surrounding same-sex cases, because stepfamilies are just as populous in red states as blue, and no politician can use it to their advantage. Nor are stepfamilies subjected to the same degree of prejudice. Stepparents might be vilified, but they are vilified one at a time — not as a class. However, the systematic bias against them is very real.

Just as the law prefers parents to be one male and one female, the law prefers to limit the number of parents to two. Maybe this is because two is the number of people it takes to make a child in the first place. Maybe it's because all the government forms are already printed with two signature lines. Maybe it's because two worked so well for us for so long. But that hasn't been the reality for several decades, and it's time for the law to catch up.

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I have to disagree with this author completely about the real ramifications of this ruling, although I myself mentioned step persons in my initial post, the real issue for me was all the OTHER people who could be potently included in future defacto parental rulings: from boyfriends to babysitters the potential is endless. Visitation or even eventual custody of children is worth money to people today, not just as regards child support but many taxes and other public benefits (including some citizenship benefits) accrue to the custodian/guardian of a child. Thus, children need to be protected from the unscrupluous attempting to use custody of them for advantage.

Step persons are already considered to have rights including legal and financial responsibilities for step children in many states in the union. I know in New York State they can be court ordered to pony up for everything from child support to college tuition depending upon the individual situation.

In some sense this is fair as a person knows what they are getting into when they marry someone who already has children. But this defacto parent business can now expand this limited rights/responsibilities of step persons to many others now and that’s the real serious issue here. It’s everyone ELSE who can now fall under the defacto parental umbrella, all depending upon the whim of a Family Court Judge.

Additionally as the attorneys for the child’s mother pointed out it could mean an ever changing number of people being defined as a defacto parent in a child’s life. Especially considering how many divorces, live in arrangements, etc., that parents appear to be entering into today.

The inconsistencies of court rulings which range from family to criminal court issues is another big problem I think. As we can’t count on any ruling being consistently applied, no matter what level it has been handed down from. It seems to always be open to potential re-interpretation by another lower court judge. We can’t even count on the US Supreme Court being consistent as we saw with this ruling. As they just refused to hear the case; even through it appears to directly contradict the Supremes own past ruling in the Troxel case.

Supposedly Troxel was now settled law and had changed the landscape (as many kept saying) re-establishing the supremacy of the parental rights of all fit parents to make the decisions about who they would allow in a child’s life, not the courts.

That assumption has now been tossed out the window.

I mean people have CHOICES to legalize their status with a child BEFORE the end of the relationship with the child’s other parent. Adoption is, and has been for a while now, available for a second parent as an option and this includes gay parents. I’m curious as to why people who wish to be parents to children wait until the relationship with the child’s other parent is on the rocks before exploring this option? They appear to want to retroactively ‘do-over’ their choice after the relationship ends and this should not be allowed. Not to mention the fact that this leaves open the potential for Judges to force you to be a defacto parent after having a relationship with a child’s parent. What about that happening? Should people be forced to pay child support for children that aren’t theirs (which can range anywhere from 30% to 50% of your income if you factor in all the add ons not included in guideline support, such as uncovered medical and your prorated share of child care) just because you were in a relationship with the child’s parent for some length of time?

We had a similar situation a year ago to the day practically on the east coast, where a New Jersey Judge ruled that a lesbian could be placed on a birth certificate because …“ In New Jersey, a lesbian or gay man applying for adoption must go through a lengthy process that, according to one attorney who argued on behalf of the lesbian mothers, takes between six months and two years…rather then apply for a second parent adoption, LoCicero petitioned to be considered as a full legal parent.”

http://womenasmothers.blogspot.com/2005_06_01_womenasmothers_archive.html

So rather then wait the six months to two years that an adoption would have taken, instead let’s just start engaging in all sorts of experimental social engineering based upon court rulings that could have all sorts of insidious results down the road for us as a society.

That makes sense.

NOT.

Let’s stick with the definition we already have of a parent and those who wish to legalize the relationship between themselves and a child for any reason can chose to adopt. If the other parent objects, then you can take it as an early warning sign that will alert you to potential problems with the relationship BEFORE you become overly invested in a relationship with a child, which is ultimately not yours. I mean where would we be if every babysitter, teacher, neighbor or school busdriver decided to invest themselves emotionally in every child they encountered during their ordinary workweek and thus were entitled to file for custody based upon this irresponsible and childlike behavior?