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
But that court had created a new category of parents and endowed them with all the rights and privileges that attach to natural parenthood.
After becoming involved in a
same-sex relationship in the summer of 1989, Sue Ellen Carvin
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,
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
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
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
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.
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