State recognition of de facto parentage has significantly increased over the past twenty years. Today, nearly two-thirds of states recognize some form of functional parent, either through common law doctrines, equitable doctrines, or statutes. Such recognition tracks the evolving structure of the American family and allows courts to confer standing and extend parental rights and responsibilities to functional parents who form a parental relationship with a child. Acknowledging this shift, the 2024 inaugural Restatement of the Law: Children and the Law defined de facto parents as distinct from third parties, following in the footsteps of the 2002 American Law Institute Principles of the Law of Family Dissolution, the 2017 Uniform Parentage Act, and the 2018 Uniform Nonparent Custody and Visitation Act.
When state courts analyze de facto parentage claims, they face two primary questions: (1) What procedural steps should courts follow?; and (2) How do deviations in procedural requirements impact whether individuals will be successful in establishing de facto parentage? This Article makes two novel contributions to scholarship in this area by being the first to examine de facto parentage through a procedural lens. The first contribution is descriptive: Through an updated survey of recent case law analyzing de facto parentage claims, this Article links procedural mechanisms that state courts follow when adjudicating de facto parentage with their significant and underappreciated influence on whether individuals asserting de facto parentage will be successful in court. This survey reveals emerging areas of divergence amongst courts that recognize de facto parentage resulting from different procedural hurdles imposed by courts on petitioners. Building on this survey and existing wide-scale empirical legal scholarship, this Article advances the position that de facto parents should be treated as legal parents.
This Article’s second contribution is prescriptive: It proposes a recommended judicial framework for courts to adopt when adjudicating de facto parentage. This framework addresses the identified areas of existing divergence to better achieve uniformity in the adjudicatory process and minimize barriers facing de facto parents. Using this framework as guidance, this Article proposes recommendations for state legislatures to consider when drafting statutes recognizing de facto parentage. These recommendations protect the constitutional rights of legal parents, de facto parents, and children, and encourage courts and state legislatures to develop and codify procedures that equate de facto parentage with legal parentage.
