A review of the de facto parentage case In Re Custody of B.M.H. that went through the Washington Supreme Court in November 2013.
By Christina A. Meserve and Charles E. Szurszewski, Family Lawyer
At the 2012 Midyear, we covered the Court of Appeals decision in this case. When the case reached the Supreme Court, the Supremes affirmed in part and reversed in part. Laurie and Michael Holt had a complicated history. They had one child together in 1995 and then separated. Laurie became pregnant with another man’s child, who died in a work-related accident. When B.M.H. was born, Michael Holt was present at the birth, cut the umbilical cord, and in all other respects acted as B.M.H.’s parent. When the parties divorced two years later, however, B.M.H. was not addressed in the parenting plan or in the order of child support. Although the parties discussed adoption even post-divorce, they decided not to pursue it because it would terminate the benefits that B.M.H. received from his biological father. His last name, however, was changed post-decree to Holt.
When the mother wanted to relocate with B.M.H., Michael Holt filed both a third-party custody action and a de facto parentage action to establish himself as B.M.H.’s legal parent.
The trial court dismissed the de facto action but allowed Michael to proceed with his third party custody case under RCW 26.10. The Court of Appeals confirmed that Michael could proceed under RCW 26.10 but also reinstated his right to proceed to attempt to establish that he was B.M.H.’s de facto parent. The Supreme Court ruled that there was no basis to proceed with the RCW 26.10 action because there was no showing of actual detriment to B.M.H. by remaining in his mother’s care. However, the court affirmed the Court of Appeals ruling that Michael should be allowed to proceed with his de facto parentage action.
The dissenting opinions argued that the de facto parent option should not be available to stepparents and that the de facto parentage remedy which was pronounced in Parentage of L.B. is no longer necessary because of changes in the domestic partnership and parentage statutes.
Practice Tip: It is safer to file both a de facto and a third-party custody action.
Christina A. Meserve and Charles E. Szurszewski practice family law in Olympia, Washington with the law firm of Connolly Tacon & Meserve.
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