National Catholic Register

Commentary

De Facto Parents and Children’s Rights

BY DANIEL D. LEDDY JR.

August 20-26, 2006 Issue | Posted 8/21/06 at 9:00 AM

 

A Washington State court has redefined parenthood. On May 15, the U.S. Supreme Court declined to hear an appeal by the biological mother of an 11-year-old child from a controversial decision handed down last year by the Washington State Supreme Court.

But that court had created a new category of parents and endowed them with all the rights and privileges that attach to natural parenthood.

Under the Washington ruling, the mother’s former lesbian partner secured the right to prove that she is a de facto parent of the child who was conceived by artificial insemination while the two women were living together. The refusal by the nation’s highest court to consider the matter is especially unfortunate since bedrock legal principles of family law are increasingly at risk of radical alteration by activist state judges advancing their own social agendas under the guise of interpreting the laws and constitutions of their respective jurisdictions.

After becoming involved in a same-sex relationship in the summer of 1989, Sue Ellen Carvin and Page Britain began living together in September of that year. In 1994, the two decided that they wanted to have a child. To that end, Britain was artificially inseminated with sperm donated by a mutual friend. The child, identified in the decision only as L.B., was born May 10, 1995.

The two women held themselves out as a family and even arranged for the child’s school records to list both of them as parents. Shortly before L.B.’s sixth birthday, they ended their relationship. Soon thereafter, Britain began limiting Carvin’s contact with the child, eventually terminating it entirely in the spring of 2002. Carvin responded by initiating court action to be declared a legal parent of the child under the Uniform Parentage Act (UPA) or, in the alternative, to be adjudged a de facto parent with the same legal rights enjoyed by Britain.

On Nov. 3, 2005, a sharply divided court ruled in favor of Carvin, holding that even though a plain reading of the Uniform Parentage Act didn’t support her claim under it, she had the right to seek the status of de facto parent under Washington’s common law. Why? Because, said the court, “reason and common sense support recognizing the existence of de facto parents and according them the rights and responsibilities that attach to parents in this state.”

The truth, however, is that the outcome is both a classic and egregious judicial overreaching. The Uniform Parentage Act sets forth specific requisites for establishing a mother-child relationship. Carvin clearly did not fit under any of them, a fact that the court had to concede. Since the Legislature expressly included certain classes of individuals within the ambit of the statute, it is reasonable to assume that it intentionally excluded those omitted.

The court however, wasn’t about to let a co-equal branch of government stand in the way of achieving the result it sought. So it reached the conclusion that the statute’s failure to expressly exclude individuals in Carvin’s position provided it with wiggle room to resort to the state’s common law.

The dissenting opinion, written by Associate Justice James Johnson, correctly characterized the court’s ruling as “unconstitutional and in derogation of rights of the mother because it interferes with an admittedly fit parent’s fundamental right to make child rearing decisions.”

It has long been established that, under the 14th Amendment to the U.S. Constitution, natural parents have a fundamental right to raise their children as they deemed appropriate. An allied presumption is that fit natural parents ordinarily act in their children’s best interests. For this reason, the state is powerless to interfere with parental judgments regarding their children absent extraordinary circumstances such as actionable neglect or abuse.

The implications of this parental right were illustrated in 2000 when the U.S. Supreme Court decided Troxel v. Granville, a grandparent visitation case that also involved a Washington State statute.

After Brad Troxel, the father of two daughters, committed suicide, their natural mother severely restricted the girls’ visitation with their paternal grandparents whom they had been visiting every weekend. Brad’s parents initiated an action under a Washington law that authorized courts to accord visitation to “any person” if it would be in the best interests of the child.

The court granted the grandparents greater visitation than the mother was willing to accept, so she appealed. The case eventually wound up before the U.S. Supreme Court, which held that Washington’s “breathtakingly broad” statute was unconstitutional because, in failing to give due consideration to the wishes of natural parents, it violated their right to control the upbringing of their children.

Under the Troxel rationale, Carvin, a non-relative, cannot possibly have a superior legal claim to a place in L.B.’s life than the grandparents had with Brad Troxel’s daughters.

The Washington Supreme Court dealt with this hard reality by ignoring it. They brushed aside the will of the state’s elected representatives and circumvented clear federal constitutional mandates. Thus, by high-handed judicial fiat, they created the category of de facto parents, endowed it with the same rights accruing to natural parents, and catapulted Carvin from her actual status as an outsider with no definable legal rights into a position of asserting entitlement to the new designation.

It may well be that the precipitous removal of Carvin from L.B.’s life would be detrimental to the child.

If so, the appropriate remedy is to provide her with visitation under a constitutionally valid statute that requires due weight to be given to the natural mother’s wishes.

However, the tortuous path forged by the court to create de facto parenthood for her is not only a glaring example of judicial activism at its worst, but another illustration of a runaway judiciary creating minefields for those who want to follow family law.

Daniel D. Leddy Jr. is a

retired family court judge.