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Recognizing the New Reality of Diverse Parentage: A Call for Reason in the Juvenile Dependency Justice System

Jackie Madara-Campbell, JD

You’re seven years old, scared and want your mom. Four days ago, some strangers took you from your home and now you’re living with other strangers calling themselves foster parents. When you ask where your mom is, these strangers explain that she’s sick and can’t take care of you. In truth, she’s addicted to prescription painkillers and has an undiagnosed mental illness. Nobody knows where she is.

But you’ve got two parents. So why are you here with these strangers? What you don’t know is that you’re trapped in one of the biggest holes in our juvenile justice system. Your other parent is also a woman. Under the law, these strangers have more right to be involved in your life than she does.

Cases like this are all too common today, as legal and mental health professionals involved with the juvenile justice system are well aware. The issue of parental rights for non-biological parents is something that must be addressed or children will continue to suffer.

New Reality, Old Thinking

When viewed through the eyes and mind of the child, it seems intuitive that “psychological” parents should be key players in any dependency case. It’s well settled that [T]he interest of parents in the care, custody, and control of their children-is perhaps the oldest of the fundamental liberty interests recognized by this [the Supreme] Court.i

However, many state juvenile dependency courts still operate under the legal fiction that the only family a child can have is a biological mother and a biological father. This is old thinking applied to a new reality. In fact, 2006-2008 American Community Survey 3-Year Estimates show that only 21.5 percent of children under the age of eighteen live in “traditional” married couple family households.

Children being raised by same-sex couples especially are, in essence under our laws, a new breed of illegitimates, suffering a fate similar to children born to unwed mothers in prior generations. ii Both groups have been deprived of rights, benefits and protections, not the least of which is a continuing relationship with both parents, based solely on their parents’ marital status or lack thereof. iii


Life on the Edge: Models for Change

Several state juvenile court systems have walked the razor’s edge between biological parental rights and non-biological parental rights and made recent strides of significance in recognizing non-biological parent standing in the best interests of children.

The Uniform Parentage Act (2002) may eventually be a useful tool in the area of legal recognition of non-biological parents as well. Though it has been largely ineffectual in so far, the Act, drafted by the National Conference of Commissioners on Uniform State Laws, and approved by the American Bar Association in 2003, may provide a legal instrument through which our justice system may achieve uniform recognition of non-biological parents’ rights.

In the case of Kristine H. v. Lisa R, 16 Cal.Rptr.3d 123, 151 (2004), a California court of appeal applied the UPA to a dispute between lesbian co-parents Kristine and Lisa. Kristine was inseminated via donor sperm. The couple obtained a declaratory judgment establishing that they were joint legal parents and Lisa was placed on the birth certificate in the space for the father.iv

After the child was born, Kristine and Lisa took joint financial responsibility for the child and cared for her together.v They registered as domestic partners in the State of California as well.vi

Kristine and Lisa broke up when the child was two years old and Kristine (the biological mother) filed a motion to vacate the previous stipulated judgment that they were joint legal parents.vii

On appeal, the California Court of Appeal found that although the stipulated judgment was unenforceable, Lisa could be declared a parent with standing to pursue custody and visitation under the UPA, specifically under section 7611(d) – the paternity provision which grants presumed father status to men who hold children out as their own, regardless of any biological tie between the man and the child.viii

The California Court of Appeal has further found, regarding the UPA: “The Act contemplates two legal parents irrespective of their gender. As a general proposition, it benefits both the child and the parents to identify as early as possible who is responsible for the child’s protection, guidance, and care.”ix

As the Hawaii Supreme Court has observed regarding the UPA: “The fundamental purposes of [the UPA] are “to provide substantive legal equality for all children regardless of the marital status of their parents’ and to protect the rights and ensure the obligations of parents of children born out of wedlock.”x

It follows, that, within the states that have adopted the UPA, or relevant portions of it, the Act may provide non-biological parents a vehicle to obtain a judgment to enforce their rights regarding a child in a dependency proceeding. Additionally, the UPA may offer one way to improve the children’s position in many legal situations without running afoul of a Defense of Marriage Act.xi

Some states have adopted standards similar to the UPA via legislative enactment or common law. South Carolina, for example, has a family court with exclusive original jurisdiction over any child who is neglected or alleged to have violated or attempted to violate any state or local law or ordinance.xii

In Middleton v. Johnson, 369 S.C. 585, 593, 633 S.E.2d 162, 167 (2006), the South Carolina Court of Appeals determined the legal standard for a third party’s claim for visitation of a non-biological child for whom he or she claims to have functioned as a psychological parent.

The court held that, while great deference is accorded to the visitation decisions made by a fit parent, the family court can in fact grant visitation to a third-party over a fit parent’s objection when faced with compelling circumstances.xiii

The South Carolina Court of Appeals, in Middleton, acknowledged that South Carolina’s General Assembly, in seeking to promote the goal of safeguarding the best interests of children, recognized that in certain circumstances, persons who are not a child’s parent or legal guardian may be proper parties to a custody proceeding.xiv

The Middleton Court identified four factors in determining whether a person stands in the shoes of a psychological parent to a child:

  1. When a legal parent invites a third party into a child’s life, and that invitation alters a child’s life by essentially providing him with another parent, the legal parent’s rights to unilaterally sever that relationship are necessarily reduced. The legal parent’s active fostering of the psychological parent-child relationship is significant because the legal parent has control over whether or not to invite anyone into the private sphere between parent and child. Where a legal parent encourages a parent-like relationship between a child and a third-party, the right of the legal parent does not extend to erasing a relationship between the third party and her child which she voluntarily created and actively fostered.xv
  2. The second prong considers whether the psychological parent and child have lived together.xvi
  3. The psychological parent must undertake the obligations of parenthood by being affirmatively involved in the child’s life by assuming caretaking duties and providing emotional support for the child.xvii
  4. The length of time the psychological parent acted in a parental capacity must be sufficient for a parent-child bond to have been established. Further, inherent in the bond between the child and the psychological parent is the risk of emotional harm to the child should the relationship be curtailed or terminated.xviii

A Call For Reason

Children and families across the country are suffering from a juvenile justice system that hasn’t fully caught on to the new reality of family diversity. Several states have taken steps to address this, but much more needs to be done. A juvenile justice system that doesn’t adequately account for the issues of non-biological parents – particularly same sex couples – is a system that doesn’t fully or fairly protect the children and families it is intended to serve.

A reasonable approach must be found and applied that properly balances the rights of biological parents and “psychological” parents and attains the ultimate goal of preserving family relationships and, above all, the best interests of the child no matter what the biological situation of his or her parents.

No child should be removed from home and sent to live with strangers simply because the law doesn’t account for that child’s situation. Legal recognition of diverse parentage is simply in the best interests of our children. It is a hole in our system that must be filled.

i Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

ii Goodridge v. Dept. of Public Health, 798 N.E.2d 941 at 956-957, 964(Mass. 2003).

iii Rebra Carrasquillo Hedges, Student Author, The Forgotten Children: Same-Sex Partners, Their Children and Unequal Treatment, 41 B.C. L. Rev. 883, 903 (2000); see Louis A. Silverman, Suffer the Little Children: Justifying Same-Sex Marriage from the Perspective of a Child of the Union, 102 W.Va. L. Rev. 411, 436-449 (1999).

iv Id. at 153.

v Id. at 153.

vi Id. at 154.

vii Id. at 159.

viii Id. at 161-170.

ix Sharon S. v. Superior Court (Annette F.) 31 Cal.4th 417 (2003).

x Rebra Carrasquillo Hedges, Student Author, The Forgotten Children: Same-Sex Partners, Their Children and Unequal Treatment, 41 B.C. L. Rev. 883, 903 (2000).

xi See Deborah L. Forman, Married with Kids and Moving: Achieving Recognition for Same-Sex Parents Under the Uniform Parentage Act, 4 Whittier J. Child & Fam. Advoc. 241 (Spring, 2005).

xii Code 1976 § 14-2-10; Code 1976 § 63-3-510(A).

xiii Middleton v. Johnson, 369 S.C. 585, 601, 633 S.E.2d 162, 171 (2006).

xiv Section 20-7-420(20).

xv V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539, 552 (2002) (explaining the Wisconsin test’s first prong) cited in Middleton v. Johnson, 369 S.C. 585, 597, 633 S.E.2d 162, 169 (2006).

xvi Middleton v. Johnson, 369 S.C. 585, 598, 633 S.E.2d 162, 169 (2006).

xvii Id. at 169.

xviii In re E.L.M.C., 100 P.3d 546, 560 (Colo.Ct.App.2004) cited in Middleton v. Johnson, 369 S.C. 585, 598-99, 633 S.E.2d 162, 169 (2006).

This entry was posted on Friday, April 30th, 2010 at 11:18 am and is filed under Spotlight Issue.

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Survey of Non-Biological Parent Cases Across U.S. Juvenile/Family Courts
  1. California: De facto parent, defined as that person who, on a day-to-day basis, assumes the role of parent, seeking to fulfill both the child’s physical needs and his psychological need for affection and care. In re B.G. et al., 11 Cal.3d 679, 693, 523 P.2d 244, 114 Cal.Rptr. 444 (1974); In re Kieshia E., 6 Cal.4th 68, 75, 859 P.2d 1290, 1294, 23 Cal.Rptr.2d 775, 779 (1993). De facto parents should be permitted to appear as parties in juvenile court proceedings to assert and protect their own interest in the companionship, care, custody and management of the child. In re B.G. et al., 11 Cal.3d 679 at 693, 523 P.2d 244, 114 Cal.Rptr. 444 (1974).
  2. Iowa: Although the courts do not automatically apply the rules of civil procedure to a juvenile proceeding, they have permitted applicants to intervene in a termination of parental rights proceeding. In the Interest of H.N.B. and A.J.B., 619 N.W.2d 340, 343 (2000) citing In re A.G., 558 N.W.2d 400, 402 (Iowa, 1997). The termination of parental rights provisions in the juvenile code do not set out provisions for intervening. In the Interest of H.N.B. and A.J.B., 619 N.W.2d 340, 343 (2000) citing In re. J.R., 315 N.W.2d 750, 752 (Iowa, 1982). When determining if someone should be allowed to intervene, the closeness of the relationship between the child in interest and the intervener is a critical factor. In the Interest of H.N.B. and A.J.B., 619 N.W.2d 340, 343 (2000) citing In re B.B.M., 514 N.W.2d 425, 429 (Iowa 1994). In B.B.M., the court found that the lack of an ongoing relationship between the child and grandparents weighed against intervention. In the Interest of H.N.B. and A.J.B., 619 N.W.2d 340, 343 (2000) citing In re B.B.M., 514 N.W.2d 425, 429 (Iowa 1994). However, in C.L.C., the couple who sought to intervene had devoted a significant amount of time each week to the children for nearly two years prior to intervention and were allowed to intervene in the termination proceedings. In the Interest of H.N.B. and A.J.B., 619 N.W.2d 340, 343 (2000) citing In re C.L.C., 479 N.W.2d 340, 344 (Iowa App. 1991).
  3. Kentucky: To qualify as a de facto custodian in Kentucky, one must be the primary caregiver for, and financial supporter of, a child who has resided with the person. KRS 403.270(1)(a). It has been held that parenting the child alongside the natural parent does not meet the de facto custodian standard in KRS 402.270(1)(a). Mullins v. Picklesimer, not reported 2010 WL 246063, citing Consalvi v. Cawood, 63 S.W.3d 195, 198 (Ky.App. 2001), abrogated on other grounds by Moore v. Asente, 110 S.W.3d 336 (Ky. 2003). Rather, the nonparent must “literally stand in the place of the natural parent.” Id. Mullins noted that several sister states have found that the nonparent has standing to seek custody or visitation of the child when the child was conceived by artificial insemination with the intent that the child would be co-parented by the parent and her partner, and the parent and her partner thereafter co-parented the child for a period of time. Mullins v. Picklesimer, not reported 2010 WL 246063, citing In re Parentage of L.B., 155 Wash.2d 679, 122 P.3d 161 (2005) (partner had standing as a common law de facto parent which was limited to nonparents who have fully and completely undertaken a permanent, unequivocal, committed, and responsible role in the child’s life).
  4. Nebraska: Nebraska’s juvenile dependency cases are handled by separate juvenile courts and – in smaller jurisdictions – county courts sitting as juvenile courts. State Statutes and Case Law allow for equitable intervention in juvenile court proceedings by individuals other than biological parents and biological grandparents (who are entitled to intervene as a matter of right). Colman v. Colman Foundation, Inc. 199 Neb. 263, 258 N.W.2d 128 (1977); Department of Banking of Nebraska v. Stenger, et al., 132 Neb. 576, 272 N.W. 403 (1937); State of Nebraska ex rel. City of Grand Island v. Tillman, 174 Neb. 23, 115 N.W.2d 796 (1962); 4 Chris Costantakos, Juvenile Court Law and Practice §11.1 (2007 Edition). See In re Interest of Destiny S., 263 Neb. 255, 639 N.W.2d 400 (2002); 4 Chris Costantakos, Juvenile Court Law and Practice §11.6 (2007 Edition).
  5. Virginia: A former live-in girlfriend of the child’s mother filed petition seeking court-ordered visitation with the child was not a person with a legitimate interest under child visitation statute governing non-parents under West’s V.C.A. § 20-124.1. Damon v. York, 54 Va.App. 544, 680 S.E.2d 354 (2009). Under § 20-124.1, a person with a legitimate interest shall be broadly construed and includes, but it not limited to grandparents, stepparents, former stepparents, blood relatives and family members. Id. at 358.