SJC Rules on De Facto Parenthood

A.H. v. M.P., (No. SJC-09815)

by David Eppley and Lisa Wilson

You may recall from last month’s newsletter that we provided you with an overview of the law involving de facto parenthood in Massachusetts and the issues presented in A.H. v. M.P., (No. SJC-09815), which concerned the rights of a non-biological parent to a child planned and born to the biological parent during their relationship but not legally adopted by the non-biological parent during the 18-month period from the date of the child’s birth until the date the parties separated.

Under current law, a de facto parent is one who has no biological relation to the child, but has participated in the child’s life as a member of the child’s family.  The de facto parent resides with the child and, with the consent and encouragement of the legal parent, performs a share of caretaking functions at least as great as the legal parent. A de facto parent does not have full rights of custody in Massachusetts.

On the Legal Issues Presented in A.H. v. M.P., the SJC ruled as follows:

Whether the Trial Judge erred in ruling that Plaintiff (AH) is not a de facto parent and awarding MP sole legal and physical custody with any visitation between AH and the child to be at MP’s discretion?

Answer: No. Critical to the court’s determination of whether or not AH is a de facto parent is whether a “disruption in the adult-child relationship is potentially harmful to the child’s best interest.”   The trial court determined that AH was the primary “breadwinner” of the family, M.P. was the primary caretaker and the child’s primary bond was to his primary caretaker. Although equally important parenting functions, hands-on caretaking functions are likely to forge a strong bond between adult and child, the disruption of which could prove harmful to the child. The SJC determined that the trial judge did not simply compare the quantity of caretaking but also the quality of care provided by each parent, and although the child may receive a benefit from contact with AH, their bond did not rise to that of a parent-child relationship.

Whether a de facto parent is entitled to full custody rights as opposed to just visitation?

Answer:  Although not squarely addressed, in comparing the difference between a de facto parent and a parent by estoppel under the American Law Institute Principles (ALI), the court states, “[u]nlike de facto parent, a parent by estoppel ‘is afforded all of the privileges of a legal parent’…[t]hus, the parent by estoppel principle is a most dramatic intrusion into the rights of fit parents to care for their child as they see fit.”   The court does not indicate that the rights of a de facto parent should be expanded to those of a legal parent. 

Whether Massachusetts should recognize a “parent by estoppel?”

Answer: The SJC “declined in this case” to adopt the “parent by estoppel” theory. Although a co-parenting agreement is the “foundation of a parent by estoppel claim….parenthood by contract is not the law in Massachusetts.” Although such contracts may shed light on the parties’ intentions, they are not determinative of parental status and are void as against public policy.  Although the ALI recognizes this legal status with the “full privileges of a legal parent,” such a status is “most appropriate where adoption is not legally available or possible.” The SJC noted that adoption was available to AH from the moment of the child’s birth.

Whether a two-year residency with the child should be required to establish de facto parenthood or parenthood by estoppel?

Answer: Since AH did not meet her burden of proving that she is a de facto parent, the court expressed no opinion on the two-year residency requirement. 

 As a result of this decision,  it is essential for a non-biological parent to legally adopt his or her child if they wish to secure the “full privileges of a legal parent.”  Otherwise, a non-biological parent must meet the de facto parent standard or risk having no contact whatsoever with the child.