The De Facto Parent

Non-traditional family arrangements are more common than ever. Single individuals are seeking to become the legal parent of a child outside of a marriage or committed relationship, whether biologically or through adoption. Often, the child’s legal parent enters into a relationship with someone who assumes caretaking functions for that child, and develops, over time, a significant bond with the child. When the relationship between the adults ends, it can present many emotional and legal difficulties with regards to the caretaker’s continued relationship with the child. This situation has been especially prevalent in the gay and lesbian community.

Massachusetts Courts have recognized the de facto parent doctrine to help address this situation. A de facto parent is literally a parent in fact, though not at law, and might have the right to establish visitation with the child if it is found to be in the child’s best interest (1). In order to establish de facto parentage, it must be proven that the adult lived with the child and participated in the child’s family with the consent and encouragement of the legal parent, performed caretaking functions at least as great as the legal parent, shaped the child’s daily routine and addressed his or her developmental needs, disciplined the child, provided for education and care, and served as a moral guide.

Once a party is found to be a de facto parent, then visitation may be sought; but the Court must still be convinced that such visitation is in the child’s best interest and that the child will suffer psychological harm if visitation is not permitted. Also, a de facto parent does not possess the same rights as a parent who possesses legal custody, such as the right to make important life decisions for the child or consent to medical treatment.

The burden of establishing de facto parentage and visitation is extremely high, and for good reason. An otherwise fit legal parent is afforded constitutional protections and extreme deference in determining what is in his/her child’s best interests, and may have compelling reasons for terminating a child’s relationship with an adult caretaker—reasons that may also have marked an end to the adults’ relationship.

If you have questions regarding the de facto parent doctrine or your rights as a parent, please contact us for a consultation.

(1) A de facto parent is never someone paid to provide caretaking functions.

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