Washington. The petitioner in B.M.H. was B.M.H.’s former stepfather, a category of petitioner already found ineligible to assert de facto status in M.F. A.F.J. had been placed into the custody of the petitioner for foster care, in the context of a dependency proceeding. This seemed to clearly be a bar to seeking de facto status, given that the child was technically placed in the petitioner’s care at the behest of the state in the context of a dependency proceeding. With neither petitioner appearing to be a viable candidate for adjudication of parentage under the de facto doctrine, and with the statutory gap identified in L.B. closed, what, if any, viability did the doctrine have?
The biological mothers and amici curiae3 opposing the extension of the de facto doctrine in both cases presented these (among other) arguments to the Court, urging that the doctrine be limited only to cases that are factually similar to L.B., and raising the constitutional concerns identified by the Court in M.F.
reaffirmed the policy it promoted in L.B.
formed a loving, connected relationship?
In some respects, the answer to this question is “time will tell.” As the de facto doctrine continues to be litigated in the trial courts, it can be reasonably expected that aggrieved parties will appeal, thus putting the doctrine up for further scrutiny in the appellate courts. However, B.M.H. and A.F.J., when considered in the context of prior de facto cases, do not lack guidance as to who can meritoriously seek a determination of parentage under the doctrine.
The Court in both cases relied heavily on the first factor — consent to and fostering of the parent-child relationship — in finding that the petitioners had standing. The “consent” factor is a meaningful limit, as it will not permit a non-parent to proceed with a de facto petition with regard to a child who has two legal parents — because only one of the parents could meaningfully consent to a new partner becoming a “parent” to a child. Indeed, this is what occurred in M.F. We do not know the level of involvement that M. F.’s father had in M. F.’s life, but this was not something that the Court even considered in determining that Corbin had no standing.
The consent factor is not just about consenting to a familial relationship; it is about a parent consenting to the development of a parent-child relationship. Our family courts have the ability to distinguish between a parent promoting a healthy and bonded relationship with a relative or family friend, and a parent who intends to create a true parent-child relationship between their child and a non-parent.