A legal parent is someone who is biologically related to a child, or who has adopted the child, or who was married to the child’s biological parent when the child was born. In certain circumstances, an adult who is not a child’s legal parent has nevertheless functioned as an important caretaker for a significant period of time and might be a child’s parent in fact even though she or he has no legal relationship to the child. Many states offer legal protections to relationships between children and their psychological or functional parents. In Massachusetts, such an adult caretaker is known as a “de facto” parent, i.e., a parent in fact, though not at law, and might have the right to visit with the child if visits are found to be in the child’s best interest.
The legal claims of a de facto parent were recognized in Massachusetts in 1999 in a pair of decisions by our Supreme Judicial Court. The first of these involved an aunt who had cared for her niece over a long period of time; the second involved the lesbian partner of a child’s legal parent. It is not unusual for a de facto parent claim to be brought following a break-up between a child’s legal parent and the parent’s former partner. The legal rationale for such a claim is to protect the child from the psychological harm that could result from the sudden loss of an important caretaker. If the court determines that ongoing access to the caretaker is necessary to protect the child’s best interest, then the court will order visits with the child even over the objection of the child’s legal parent.
Because fit custodial parents enjoy strong constitutional protections, it is not easy to prevail in a de facto parent action. The caretaker must prove that she resided with the child for a significant period of time during which she performed at least as much caretaking as the legal parent, and that during that time she formed a parental bond with the child with the consent and encouragement of the legal parent. The caretaker must also show that if this bond is broken, the child will suffer irreparable psychological and/or emotional harm, and so it is in the child’s best interest to have ongoing access to the caretaker. Caretakers who were paid for their services may not be de facto parents.
De facto parents are different from legal parents. A de facto parent does not have the right to make important life decisions for the child, to consent to medical treatment, or to assume any of the other responsibilities that accompany legal custody. Nor is a de facto parent obligated to pay child support. Since custody and support are core aspects of parenthood, the term “de facto parent” is something of a misnomer. A de facto parent is someone who performed caretaking functions, as distinct from parenting functions. So, for example, an adult who lived with a child and supported the child and the household will not be a de facto parent if she did not perform close to a majority of caretaking functions for the child.
In Massachusetts, a de facto parent claim is brought in the Probate and Family Court under its general equity jurisdiction.
