Beyond Biology: Exploring the Power of De Facto Parents in Visitation and Parenting Time Arrangements

Larry and Susan are currently going through a divorce, and the situation involves Susan’s twelve-year-old son, Travis. Despite not being formally recognized as Travis’s adoptive dad or having his name on his birth certificate, Larry has been a significant presence in Travis’s life since he was a a baby. Larry genuinely loves Travis as his own son and has dedicated considerable time and effort to his upbringing. Recently, Larry came across the term “de facto parents” and wonders if he fits the criteria. Larry wants to explore his options to continue seeing and actively participating in Travis’s life. What avenues are available to him?

The concept of de facto parents addresses a complex issue in family law, examining the circumstances under which a non-biological parent, essentially acting as a “parent substitute,” may be entitled to visitation rights with a child. This determination sometimes conflicts with the explicit wishes of the child’s biological parent.

In family law courts across the country, it has long been acknowledged that parents possess a fundamental right to decide how to raise their children, which includes making choices about their education, upbringing, and social interactions. Consequently, it raises the question of when the court may limit these parental rights to allow visitation by a de facto parent or a step-parent involved in the child’s life.

Susan and Larry’s situation with Travis is not uncommon. Roughly 40% of all married couples with children in the U.S. are blended families. However, in Massachusetts, there is no specific statute governing visitation rights for de facto parents, nor is there a statute regulating visitation for non-biological parents in general. Interestingly, similar questions have arisen in cases involving visitation rights for grandparents. Despite the lack of statutory guidance however, there are two crucial cases have examined these same issues. The Massachusetts courts define a de facto parent as someone who lacks a biological connection to the child but has actively participated in the child’s life as a member of their family. The de facto parent lives with the child and, with the consent and encouragement of the legal parent, assumes caretaking responsibilities equal to or greater than those of the legal parent.

In the case of ENO v. LMM, the Court deliberated on a visitation petition filed by the former same-sex partner of the child’s birth mother. The two women had jointly made decisions regarding artificial insemination, attended medical appointments together, and the non-biological parent served as the birth mother’s birthing coach. Following the child’s birth, both women shared parenting responsibilities, with the plaintiff also providing financial support and acting as the primary caregiver at one point.

When their relationship deteriorated, the non-biological parent petitioned the Court for visitation rights, among other things. The Probate and Family Court judge granted visitation, and the birth mother appealed the decision. Eventually, the Supreme Judicial Court ruled that the judge had the authority to order visitation rights for a de facto parent.

Similarly, in the case of Youmans v. Ramos, the Court granted visitation rights to a de facto parent without violating the parental rights of the biological father. The child had spent most of her life with her maternal aunt, who became her guardian after the mother’s passing. The biological father, residing in Georgia, successfully sought termination of guardianship and was awarded custody. However, the Court affirmed the Probate and Family Court judge’s authority to order visitation for the aunt. The Court noted that whenever a court order disrupts the relationship between a child and a parent, the question arises as to whether maintaining contact with that adult serves the child’s best interests. The Court emphasized that this decision should be left to the judge’s discretion, considering the evidence of the parent-child relationship and strong emotional ties between the child and the de facto parent.

When custody or adoption claims are brought forth by de facto parents, the situation becomes more intricate. In a 2009 case, where a de facto parent sought guardianship of a child and argued that the biological parent was unfit, the Supreme Judicial Court declined to grant guardianship to the de facto parent.

Experienced Massachusetts Family Law Attorneys

At Wright Family Law Group, we focus on family law and parenting time issues, and have experience with de facto parent visitation claims.  Our seasoned attorneys have extensive experience handling minor guardianships, parentage, and second-parent adoptions as well. We serve clients in Middlesex and Essex counties and are centrally located in Tewksbury and Danvers near Route 495, Route 95 and Route 93. Contact us today to schedule your consultation.