By: Rudman Winchell Attorney Anthony A. Trask
Maine courts, like so many others around the country, have awarded people with no legal connection to a child not only visitation rights, but full parental rights and responsibilities. These rare decisions were not based on any law, but rather, on a legal concept that has come to be known as de facto parenthood.
With children being raised outside the traditional social construct of marriage, people such as step-parents, domestic partners, grandparents, aunts and uncles, or even just friends are performing duties conventionally done by a child’s parent. Historically these people had virtually no rights, nor any legal responsibility, for the child they were raising.
Relatively recently courts began recognizing that when a person acted in every way like a parent, including forming a strong attachment with a child, severing the relationship was extremely harmful to the child. In very limited circumstances courts issued orders granting parental rights and responsibilities to what it referred to as de facto parents.
In other cases, however, when the relationship between the adult and child was even closer than those where de facto parent status was attained, courts have refused to declare the adult a de facto parent. This paradox has been the source of much confusion and uncertainty in the area of family law.
Maine courts appear to hold de facto parents in precisely the same regard as biological and adoptive parents. In other words, once someone has been deemed a de facto parent they have exactly the same fundamental rights to make decisions concerning the care, custody, and control of the child as the biological or adoptive parent.
Obviously, this has the potential to create incredibly complex situations, especially where the two biological parents remain active and involved in the child’s life. It is for precisely this reason that Maine courts have kept those situations where de facto parenthood status was attained to be extremely unique.
Recent case law suggests that in order to meet this high threshold the person must, in addition to many other characteristics, have been considered by all those involved in the situation, including the child, to be the child’s parent. It is this criterion that keeps people who were never thought of as a child’s parent from ever attaining de facto parent status despite intimate involvement in a child’s life.
If you feel you may be entitled de facto parent status or if you are concerned that someone may attain de facto parent status over your child, contact one of our family law attorneys to learn more about this peculiar legal phenomenon.