De Facto Parents
A legal parent is someone who is biologically related to the child, or who has adopted the child, or who was married to the child’s biological parent when the child was born. Massachusetts recognizes that there are certain circumstances in which an adult who is not a child’s legal parent has nevertheless functioned as an
important caretaker for a significant period of time and might be a child’s parent in fact even though she or he has no legal relationship to the child. Such a person is deemed a “de facto” parent and might have the right to visitation with the child
if visits are found to be in the child's best interest. One situation in which someone who is not a legal parent will have functioned as a parent involves a same-sex partner who did not co-adopt her partner’s child.
The category of de facto parent was established in Massachusetts by the Supreme Judicial Court in 1999 and was immediately applied to non-traditional families.
A de facto parent claim in same-sex breakups is likely to be filed by a former partner against the child’s legal parent in order to win visitation.
The SJC has recently held that de facto parents are not entitled to
custody and are not obligated to pay child support. Since custody and
support are core aspects of parenthood, the term "de facto parent" is
something of a misnomer. The term refers to an adult who has done a
significant amount of caretaking for a child over a long period of time and with
whom the child has formed an important relationship. The basis of the
doctrine is that disruption of that relationship is likely to cause harm to the
child and so visits with the de facto parent might be necessary to
protect the child from being harmed by losing access to that person. This
is an area of law that is still developing.
If you think you are a de facto parent to your partner’s child, or if you think that your partner could make a
de facto parent claim with respect to your child, it is important to consult an attorney as soon as possible in order to preserve or protect your parental rights.
How do I know whether I or my partner is a de facto parent?
In keeping with the category, the answer is fact-based. It depends, for example, on the length of residency with the child, the amount of caretaking that each partner performed, whether there was compensation from one partner to the other for the caretaking, whether a parental relationship was formed between the caretaking partner and the child, and, if so, whether it was formed with the consent of the legal parent.
Might a de facto parent be awarded joint custody with the legal parent?
No. The most recent opinion from the SJC recognizes a distinction between biological and adoptive parents on the one hand, and de facto parents on the other hand. Since custody is an incident of legal parentage, a de facto parent will not enjoy the rights of custody that a biological or adoptive parent has.
Can a de facto parent be liable for child support?
No.
Is a de facto parent entitled to visitation?
Yes, if a court finds that visits are in the child’s best interest. Because all orders having to do with children are based upon the child’s best interest, a parent (whether legal or factual) is not entitled to access to a child simply by virtue of being a parent. In most cases, it will be in a child’s best interest to have visits with someone who has functioned as a parent; but being a de facto parent does not automatically yield visits if they will not be in the child’s best interest.
Can a de facto parent adopt her or his partner's child?
If your partner consents, you can file a joint adoption petition and establish a legal relationship with your partner's child. But this has nothing to do with being a de facto parent. Adoptive parents have no need of de facto parent status. See Adoptive Parents and Others: Custodial Issues in Massachusetts.