Should De Facto Parents Have Visitation Rights?
Herbert A. Glieberman author of more than 30 articles,chapters & books on family law has practiced divorce law exclusively since 1954.Addressing issues of pre & postnuptial agreements,divorce, alimony,child custody & support,visitation and paternity cases
What happens when a stepparent who has helped raised a child for most of his life divorces the child's biological parent? Does the now ex-stepparent have any rights as someone who has in fact been a parent to the child-a "de facto parent"-even though there is no biological tie?
A recent decision of the Rhode Island Supreme Court says there are, that these "parents" have the same right to visitation as any adoptive or natural parent.
In part because of the increasing incidence of these parenting arrangements, the courts around the country are re-examining their laws and precedents and in many cases have opted for allowing visitation rights to de facto parents when the best interests of a child demand that it be permitted.
Biological Parents' Rights Still Paramount
The courts have not abandoned as paramount the principal that a biological parent's rights to sole custody or the right of a biological parent to decide what is good or bad for his or her child. However, depending on the age, maturity and long standing relationship between a child and his or her de facto parent, the courts are beginning to move more toward deciding that de facto parents should have visitation rights.
Relationships now being established by gay and lesbian couples whose partnerships end, either as the result of death or separation, are with increasing regularity encountering as de facto parents the same problem with visitation that heterosexual couples traditionally confronted.
Under these definitions does a partner in a gay or lesbian relationship qualify as a de facto parent? The Rhode Island Supreme Court recently said yes.
Rhode Island Decision
On Sept. 25, the Rhode Island Supreme Court ruled in a 3-2 decision that de facto parents--including gay couples--have the same right to petition for visitation rights as do biological and adoptive parents.
In the Rhode Island case, the lesbian couple agreed to become parents of a child. One of them conceived by artificial insemination from an anonymous donor. A child was born, and for four years the couple lived together as domestic partners and raised the child.
After the women separated, the woman who gave birth to the child agreed to allow the other woman to have visitation with the child. However, that formal agreement eventually collapsed and the non-biological parent petitioned the court to establish her de facto parental status and obtained a formal court order allowing visitation with the child.
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