Our State Court of Appeals, Division I, recently held that foster parents may also be de facto parents. In Re the Interest of: AFJ, docket # 63919-6. The ruling is a positive development for a very small category of adults who seek custody or a residential schedule for child, but are not the child’s biological or adoptive parent and do not fit under the non-parental custody act.
Our Supreme Court established the de facto parent category in the landmark case called In Re: Parentage of L.L.B. L.L.B. was a custody dispute between two women who had lived together in a stable marital-like relationship and jointly decided to conceive a child via artificial insemination. Upon the break-up of the relationship, the woman who carried the child – the biological mother – sought to prevent the other woman from seeing the child.
The L.L.B. court held that the non-biological mother had parental rights to the child based on the following five-prong test: 1) the natural or legal parent consented to and fostered the parent-like relationship; 2) the petitioner and the child lived together in the same household; 3) the petitioner assumed obligations of parenthood without expectation of financial compensation; 4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature; and 5) the petitioner has fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.
The primary issue in AFJ was prong number 3. The non-biological mother had cared for the child virtually his entire life – three and a half years – and had accepted foster-care payments for eight of those months. The biological mother argued that the non-biological mother flunked prong three because of these foster payments. She buttressed this argument by reference to public policy and case law regarding foster parents.
The foster parent stem is designed to provide dependent children with a temporary residence while their parents get their life in order or someone else steps into their shoes. Foster parents are generally precluded from becoming the child’s parents. However, this new case provides a limited exception. The foster parent may become the child’s legal parent if she or he is also the child’s de facto parent.
I think that is great! I believe foster parents who have a child in there care for at least a year should be considered de-facto parents
Debbie,
Thanks again for your comment. My legal advice to foster parents who wish to become de facto parents would be to not accept any fostercare payments. In addition, the foster parent needs to let DSHS know that she / he wishes to adopt and does not view the living arrangement as temporary. It also helps if the foster parent is a blood-relation to the child.
As you know, for better or for worse, the foster care system is designed to be temporary. It provides a place for the child to live until the child’s parents can be rehabilitated or a relative placement can be found.
Yale, The foster care system has a program they call foster to adopt. These are children that have been in the system for awhile and the parents have not complied or followed through with what they are supposed to do and relative placement is not available. It sounds like it would be prudent for the state to inform parents of what it means to be a defacto parent and what it may mean for them in court. I don’t see that happening, so it would be nice to see a change in that law for those foster parents who do long term foster care and are responsible for the daily care of these children and who in most cases know more about the child then the parent or state. Debbie
Debbie
I am familiar with DSHS’ foster adopt program and I find it heart-wrenching when the foster-adoptive parents don’t end up with the child. My view is that, in most cases, the child would be better off with the foster parent than the natural parent. I think a long-standing, continuous hist. of care is prob. more important to the child than any biological bond.
However, my view is not the majority view. I have had some of these cases. They are very difficult.
Yale