LEGAL GUIDE
Written by attorney Jo Ann Citron | Oct 22, 2011

De Facto Parents in Massachusetts

DE FACTO PARENTS

People other than legal parents sometimes play such an important role in a child’s life that they achieve something approaching parental status. The law often acknowledges such adults using terms like “equitable parent," “functional parent," or “psychological parent," depending upon the jurisdiction. In Massachusetts, such people are known as “de facto parents."

A de facto parent is someone who: 1) has lived with the child for a significant period of time; and 2) has performed at least as much caretaking as the legal parent, without being compensated for it; and 3) with the consent and encouragement of the legal parent has formed a parental bond with the child. A child who has formed an attachment to such a person is likely to suffer harm if the attachment is severed or disrupted, and so Massachusetts recognizes the right of such a person to bring a lawsuit seeking access to the child over the objections of the legal parent.

The U.S. Constitution protects the right of a fit custodial parent to rear her child without interference by the state. But parental rights are always limited by what is in the best interests of the child. If a judge thinks that it is in your child’s best interest to have continuing access to your former partner, then your former partner will be able to visit with your child even over your strenuous objections. De facto parents in Massachusetts are not entitled to legal custody and are not obligated to provide child support.

CAUTIONARY TALES

Once upon a time, Angie and Melinda, who had been living together for five years, decided it was time to have a family. The plan was for Melinda to become pregnant and for the couple to secure legal rights for Angie by means of co-parent adoption. The adoption papers were prepared soon after the birth of the child, and Melinda signed them. But Angie did not, which became the source of considerable tension between the couple. Eventually, when the child was around two years old, Angie and Melinda separated. Angie then sued Melinda for joint legal and physical custody, seeking to be declared the child’s de facto parent. The court case went on for three contentious years while the former partners fought over the child. A long trial and several appeals generated legal bills that exceeded $1 million. Angie did not prevail. The court reasoned that Angie had always had the means to secure her relationship to the child and had elected not to do so. The court was not going to correct Angie’s error. By the time the case ended, the child was five years old. The case generated press coverage.

Smith and Jones had been living together for three years when Smith adopted a child, Rose. Two hears later, Jones adopted a child, Liza. Jones rejected co-adoption of both children and none took place. However, she allowed Smith to act as an important caretaker for Liza. For a time, Smith stayed at home taking care of both children while Jones worked. The women separated when Liza was almost two years old. Smith sued Jones seeking to be declared Liza’s de facto parent and to win joint legal and physical custody of Liza.

For two years while the case was pending before the probate court, Jones was forced to give Liza up every Sunday so that the child could spend time with Smith. Jones needed special permission to have Liza at home with her for Mother’s Day. The trial took six days. The case went to the appeals court twice and lasted three years. Smith lost. The absence of a co-parent adoption was one of many factors that defeated her claim. Smith gave the parties’ real names to one of the newspapers, inviting more inquiries and compromising both children’s privacy.

THE MORAL

If you live with an adult to whom you are not married and if you assign significant caretaking functions to that person, you need to be clear with yourself and with your partner about what, if any, legal relationship you want that person to have to your child. If you intend that your partner is going to be a full and equal parent forever, then you should be prepared to participate in a co-parent adoption. If you are uncertain about whether you want your partner to have a legal relationship with your child and enforceable access to your child, then you need to make this clear at the outset. And you need to be careful about how much caretaking responsibility you assign to your partner. If you allow your partner to function as a parent, then you might wake up one morning to the news that you have granted certain enforceable rights that could secure continuing access to your child long after a breakup and a new relationship with someone else.

Whatever you decide about how to arrange your private adult life, remember that lawsuits are toxic to children.

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