In Re Custody of A.F.J.: The court discussed the difference between a nonparental custody petition and a de facto parentage action.
Christina A. Meserve and Charles E. Szurszewski, Family Lawyers
In 2011, we reviewed the Court of Appeals ruling in this case. This is the Supreme Court decision which affirmed both the Court of Appeals and the trial court’s de facto parentage ruling.
The parties were involved in a same-sex relationship, but lived together only sporadically. Jackie Johnston, the biological parent of A.F.J., became pregnant while heavily using crack cocaine. A.F.J. was born in 2005 while Johnston was in an in-patient perinatal treatment program. After Johnston left the treatment program, she moved in with Mary Franklin, but stayed there only a few days before relapsing. Franklin called CPS, who removed A.F.J. from the home and put him in protective custody. At the shelter care hearing three days later, both women requested that A.F.J. be placed in Franklin’s care. A.F.J. was returned to Franklin on condition that she pursue a foster parent license. She did so.
The Department of Social & Health Services filed a petition to terminate Johnston’s parental rights in early 2007. In November of that year, Franklin filed both a nonparental custody pe tition and a de facto parentage action. The trial court found adequate cause to allow Franklin to pursue both. In 2009, the judge dismissed the nonparental custody petition based upon Johnston’s progress in rehabilitation. However, the judge allowed the de facto parentage action to go forward, finding that Franklin had established by clear, cogent and convincing evidence that she was a de facto parent.
In Re Custody of A.F.J.: A Foster Parent Can be a De Facto Parent
Both parties appealed! One issue was whether a foster parent could pursue de facto parentage, because of L.B.’s factor (In re Parentage of L.B., 155 Wn.2d 679 (2005)) that an individual must have assumed obligations of parenthood without expectation of financial compensation.
The Supreme Court held that a person’s status as a foster parent does not necessarily bar recognition as a de facto parent, and affirmed the challenged de facto parentage elements.
The court discussed the difference between a nonparental custody petition and a de facto parentage action. A nonparental custody order confers only a temporary and uncertain right to custody of a child because the child has no suitable legal parent. A de facto parent, on the other hand, stands in legal parity with an otherwise legal parent, whether biological, adopted, or otherwise.
This was a 5/4 decision. The dissent argued that this was an unwarranted expansion of the L.B. case.
Christina A. Meserve and Charles E. Szurszewski practice family law in Olympia, Washington with the law firm of Connolly Tacon & Meserve.
Decisions in divorce and family law previously reflected the fact that a child could only have two legal parents. This January, a new law will change the traditional perception of “family” for the California court system.