De Facto Parent in Juvenile Dependency Proceedings
De Facto Parent in Juvenile Dependency Proceedings – Overview
In juvenile dependency cases, the court may determine that a minor must become a ward of the court. This means that the court has decided to take custody of the minor. This occurs when the child’s parents have been found to be incapable of providing proper care and safety for the child. In many cases, a ward of the juvenile court will have an adult in their life that can be relied upon to act as a parent, and with whom the minor has a relationship that is similar to that of a parent and child. For example, a minor may have a grandparent or adult sibling who has taken the place of parents. This person has an important role in the child’s life, and may have a desire to assume responsibility for the child.
The problem is that juvenile dependency case records are confidential, protected by multiple provisions in the law that prevent even a relative who has been acting as the child’s parent from gaining access to information about the case. However, a court can recognize such a person as the minor’s “de facto parent,” which is a legal status that allows the would-be guardian certain rights with respect to the child’s case.
De Facto Parent Status – Defined
According to Rule 5.502(10) of the California Rules of Court, a “de facto parent” is a person “who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection, and who has assumed that role for a substantial period.” 1
In order for a court to grant a person de facto parent status, the person must show that he or she has met the minimum requirements for receiving de facto status. 2 The court will weigh the following factors in making its decision:
- Whether the child shares a “psychological bond” with the adult;
- Whether the adult has acted as the child’s parent on a day-to-day basis for a substantial period of time;
- Whether the adult has unique information about the child that would assist the court in its proceedings;
- Whether the adult regularly attends the juvenile court proceedings; and
- Whether a future proceeding could result in an order that permanently bars the adult from having contact with the child. 3
Two Approaches: Traditional vs. Liberal
The court will examine the above factors in one of two ways. The majority of courts use the “traditional” approach, under which the court will focus on the nature of the relationship of the child to the potential de facto parent. Evidence of a positive psychological parent-child relationship that exists in a wholesome and stable environment will persuade the court to grant de facto parent status. Courts using this approach recognize that this relationship creates the legal interest of the adult in the child that is the basis for de facto parent status.
Other courts use a “liberal” approach when evaluating the claim for de facto status. Under this approach, the court will seek to gather any and all information that can be found that is relevant to the child’s future and the level of care the person applying to be the de facto is able to provide. Many believe this approach to be problematic, as a court following this approach may overlook the fact that the juvenile court can allow any person with a legitimate interest in a case to be present during hearings. Such a person may ask the court to modify or vacate any order based on evidence the court did not have at the time of the order. Under this approach, unexpected outcomes are possible, such as the awarding of de facto parental rights to a person with whom the child wanted no relationship.
Child Abuse Claims Against a De Facto Parent
A person seeking to be the de facto parent of a child may have no trouble showing the court that these factors exist, but fail to persuade the court that he or she is suitable to stand in the place of the child’s parents. When someone who otherwise meets the criteria is denied this status, it is generally because the court has learned that he or she either caused substantial harm to the child, or because he or she was the cause of the dependency proceedings. In short, a person who is the reason that the child is in juvenile court will not be granted any rights as a de facto parent.
Rights of the De Facto Parent
A de facto parent has the following rights with respect to the child’s dependency proceedings. He or she may:
- Be present at the proceedings;
- Have representation by counsel;
- Present evidence and cross-examine witnesses in court; and
- Request discovery in the case.
However, it is important to understand that a de facto parent, while having some rights, does not have the same rights that a child’s parents or legal guardian would have. For example, a de facto parent does not have the right to custody of the child, nor to have visitation or reunification. A de facto parent has some limited due process rights, but only as relates to his or her legally recognized interest in the child, but not to the extent of the child’s biological or adoptive parents. While the de facto parent is entitled to discovery in the case, the reports of social workers are not automatically provided, and must be requested. 4
Terminating the De Facto Parent Relationship
Once de facto status has been awarded, it will last until the proceedings have concluded, until changed circumstances no longer warrant the status. The Department of Social Services must file a motion to that effect, give notice to the de facto parent, and request the court to conduct a hearing. If the court finds that the status can no longer be supported in light of the new circumstances, the court may terminate the de facto parent’s rights in the proceedings.
Frequently Asked Questions on De Facto Parent Status
1. How do I apply to become a de facto parent?
Your lawyer will need to file two forms with the juvenile court that provide information about you and your relationship to the child. While you may do this on your own, an experienced child dependency attorney will be able to help you draft a convincing narrative about your relationship with the child, and provide you with a better chance of having your interest in the child protected during the juvenile dependency proceedings.
2. When I apply, can I submit letters of recommendation and other documents from people who know about the parent-child relationship between the child and myself?
Yes, and it is recommended that you do so. You should seek out persons who have day-to-day interaction with the child, such as his or her teachers, church, physicians, or therapists, or anyone who could provide the court with a better understanding of the role you play in the child’s life.
3. Do I have to be related to the child to be recognized as a de facto parent?
No. While being a relative of the child may help the court gain a clearer picture of your day-to-day relationship with the child, it is not a requirement. However, if you are related to the child, you must understand that this fact alone is not sufficient to convince a court that you should be the child’s de facto parent. 5
Contact the Child Dependency Attorneys at Wallin & Klarich for Help Filing For De Facto Parent Status
If you are seeking de facto parent status of a child who is involved in a juvenile dependency case, you should seek the help of an experienced child dependency attorney as soon as possible. At Wallin & Klarich, out attorneys have over 30 years of experience handling juvenile dependency cases. We are dedicated to giving our clients the best possible chance of succeeding with their application to become a de facto parent. Contact us today for a free, no obligation phone consultation.
With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is a Wallin & Klarich attorney experienced in California family law near you, no matter where you work or live.
Call us today at (888) 749-7428 for a free, no obligation phone consultation. We will be there when you call.
1. [See also, In re B.G. (1974) 11 Cal.3d 679.]↩
2. [In re Patricia L. (1992) 9 Cal App.4th 61.]↩
4. [See Rule 5.534(e) of the California Rules of Court.]↩
5. [See In re Kieshia E. (1993) 6 Cal.4th 68, 76; In re B. G. (1974) 11 Cal.3d 679, 693; In re Jonique W. (1994) 26 Cal.App.4th 685, 693-695; In re Joshua S. (1988) 205 Cal.App.3d 119; and Katsuff v. Superior Court (1976) 54 Cal.App.3d 1079, 1084.]↩