The Washington Supreme Court, through identical five-Justice majorities, announced two decisions expanding the definition of parent in the state.  In In the Matter of the Custody of B.M.H., the Court held that the judge-made concept of “de facto parenthood” still existed in Washington even though the legislature had subsequently recognized additional forms of families.  The Court then specifically held that former step-parents may get full parental rights over a non-biological child as a de facto parent.  In the related In the Matter of the Custody of A.F.J., the Court held that foster parents may also become de facto parents.  While the Court affirmed a four-part test to determine whether an individual had become a de facto parent, in both decisions, the Court’s key concern was whether the legal parent had consented to the arrangement.

The two decisions make it easier for a parent to start a new family and harder for a parent to stop a family.  While the decisions prioritize proof that the parent consented and fostered the parent-like relationship with the other adult, once the relationship got rolling, the court discounted evidence that the parent decided to cut off that relationship. Instead, the Court looked primarily to the child’s experience with the adult to see if the adult filled a parental role in the child’s life. The Court therefore viewed the start of the family through the parent’s eyes and the continuing make-up of the family through the child’s eyes.

The two decisions strongly locate the decision making for family creation with the parent and direct courts to recognize families as children recognize them, rather than through statutory formalities. The sharp edge to this positive and communitarian vision is, of course, that the court will only apply this analysis when the parent faces the loss of some of his or her rights to the newly confirmed de facto parent.  The power to create a family implies the power to irrevocably share some parental rights with another, even when that sharing becomes problematic.

The four dissenters in both decisions worried that the Court discounted the value of intact families to the parent making the decision to involve another in their child’s life.  The fact that a parent wanted their spouse to help raise a child did not convince these Justices that the parent wanted the person to help raise the child as an ex-spouse.  The dissent to B.M.H. carts along some sociological baggage, but is primarily a well-presented parent-centric counterpoint to the child-centric perspective of the Court’s decision.  Justice Wiggens further dissented to B.M.H. by arguing that gay marriage and domestic partnership law eleminated the statutory gap-filling role of de facto parenthood altogether.  Finally, Justice C. Johnson discounted the role of the lesbian partner in the child’s life to dissent to the court’s finding that the foster parent was a de facto parent in A.F.J..

Also noteworthy during the holiday season: the  Court’s strongly worded rejection of third party custody rights in B.M.H..  In 2000, the U.S. Supreme Court provided Washington an epic error correction in Troxel v. Granville  after the state flirted with a more liberal policy towards granting custody rights to non-parents for the best interest of the child.  This decision reflects that the message has been well-received and incorporated into state law in the thirteen years since.  Grandmothers and grandfathers are advised that they can’t sue to get more time with their grandkids when the parents tell them to butt out. Even if the other grandparents get visits on Thanksgiving AND Christmas.