Definition of De Facto Parent

A de facto parent is defined as a person who is the current or recent caretaker of a child and who has been found by the court to have assumed, on a day-to-day basis, the role of a parent to the child, fulfilling both the child’s physical and psychological needs for care and affection and who has assumed that role for a substantial period of time.

The person seeking de facto parent status has the burden of proving by at least a preponderance of the evidence that they meet the criteria for receiving de facto parent status.  When requesting status, there are several forms that must be completed and submitted to the court.

Factors the Court Considers in Determining De Facto Parent Status

There are several factors that the court takes into consideration when a person is seeking de facto parent status including the following:
(1)    the child is psychologically bonded to the adult.
(2)    The adult has assumed the role of a parent on a day-to-day basis for a substantial period of time.
(3)    The adult possesses information about the child unique from the other participants in the process.
(4)    The adult has regularly attended juvenile court hearings.
(5)    A future hearing may result in an order permanently foreclosing any future contact with the adult.

The Person Requesting De Facto Status Has Abused or Endangered The Child

When an individual meets some of the criteria but has committed a substantial harm to the child, such as sexual or other serious physical abuse that is fundamentally at odds with the role of parent, the perpetrator’s protectable interest in dispositional decisions is extinguished and that person is not entitled to receive de facto parent status.  If the person’s conduct contributed to grounds for dependency jurisdiction that person’s conduct prohibits the individual from receiving the legal status of a de facto parent.  An individual can also be denied de facto parent status where, despite a loving relationship with the child and a long period of caring for the child, the person neglects parental responsibilities by failing to enroll the child in school, failing to schedule medical and dental appointments, hitting the child, or allowing the child to witness domestic violence.

Two approaches the dependency court utilizes in determining de facto parent status.

There are two main approaches the court uses.
(1)    The traditional approach:

This approach focuses on the nature of the relationship of the child to the person seeking de facto parent status.  Where there currently exists a positive psychological parent-child relationship that has developed in a wholesome and stable environment, de facto parent status is warranted.  This approach holds that it is the special nature of the positive psychological parent-child relationship which creates the legally recognizable interest of the adult in the child so as to merit an award of de facto parent status.  This is the favored approach.

(2)    The liberal view:
This view believes that the juvenile court can only benefit from all possible information.  Decisions following the more liberal approach often overlook or discount the fact that the juvenile court can allow persons with a legitimate interest in a case to be present during hearings, that any person can ask the court to modify or vacate any order if they have evidence the court did not have at the time the order was made and the best interests of the child would be served, and that relatives and caretakers of dependent children have the right to make their views known to the juvenile court and to provide the court with information.  This trend has led to some extreme outcomes, for example in one case, awarding de facto parent status to a man that the child wanted nothing to do with.

The question the court considers is whether the individual facts of the case show the person applying for de facto parent status has assumed the role of a parent and cared for the child, developing a substantial interest in the companionship, care, and management of the child that merits legal recognition.  If the person has such an interest, de facto parent status should be granted so the person can participate in the proceedings to assert and protect his/her own interest in the companionship, care, custody and management of the child.

Counsel for a De Facto Parent

De facto parents may be represented by retained counsel in dependency hearings.  However, there is no statutory right to the appointment of counsel for de facto parents in dependency cases.  The court does have discretion to appoint counsel after the de facto parent status has been granted.

Rights of A De Facto Parent

The status of de facto parents does not entitle them to the same rights and responsibilities of parents or guardians.  The concept of de facto parent status recognizes limited rights for the de facto parent in dependency cases.  De facto parents have the right to be present at dependency proceedings, to be represented by counsel, and to present evidence.  They do not have the right to reunification services, custody or visitation.  Since de facto parents do not have a right to such services, even if they are given services they cannot appeal a juvenile court’s findings regarding such services.  De facto parents are parties and entitled to procedural due process to the extent necessary and appropriate for them to assure their recognizable interest in the child.  However, they are not entitled to the same procedural due process rights as natural parents throughout the entire course of the dependency process.  The de facto parents do have a right to discovery, but they do not have an automatic right to receive copies of the social worker reports.

Terminating De Facto Parent Status

To terminate de facto parent status, the department has the burden of establishing a change of circumstances that no longer support the status, such as when a psychological bond no longer exists between the adult and the child.  De facto parent status does not terminate by operation of law or by any other automatic mechanism except where the dependency itself is terminated.  During the dependency proceedings if the department believes de facto parent status is no longer warranted, it must file a noticed motion to that effect allowing the court to hold a hearing.