§ 51.11 DE FACTO PARENTAGE
[1] Statutory Authority
RCW 26.26A.440, enacted in 2018, as part of the Uniform Parentage Act, codifies the common-law doctrine of de facto parentage. This provision was effective as of January 1, 2019.
RCW 26.26A.440(4)(a)-(g) codifies the common-law requirements a person must establish to seek to become a de facto parent. A de facto parent has the same rights and responsibilities to a child as a natural parent. Once de facto parentage has been established, the de facto parent is not a third-party custodian but is rather a legal parent. De facto parent status is available when a child has an otherwise fit parent and can be granted over the objection of the otherwise fit parent, unlike a minor guardianship, which requires that the child have no fit parent or that the fit parent agrees to the guardianship.
The statute, in RCW 26.26A.440(3)(a)-(b), establishes a procedure that requires the petitioner to file an initial pleading that supports the petitioner's claim to parentage of the child. The pleading must be served on all parents and legal guardians of the child and any other party to the proceeding. Responsive pleadings may be filed by adverse parents or parties.
The court then reviews the pleadings submitted and determines if the petitioner has alleged sufficient facts to satisfy the following factors by a preponderance of the evidence:
a. The individual resided with the child as a regular member of the child's household for a significant period;
b. The individual engaged in consistent caretaking of the child;
c. The individual undertook full and permanent responsibilities of a parent of the child without expectation of financial compensation;
d. The individual held out the child as the individual's child;
e. The individual established a bonded and dependent relationship with the child which is parental in nature;
f. Another parent of the child fostered or supported the bonded and dependent relationship required under (e) of this subsection; and
g. Continuing the relationship between the individual and the child is in the best interest of the child.
RCW 26.26A.440(4)(a)-(g).
The court may request a hearing to make the sufficiency determination if the court believes a hearing is necessary. The reviewing judge is not making a determination about whether the petitioner is likely to prevail at a final adjudication. The review is limited to determining if sufficient facts are alleged that could establish each of the listed factors, if proved by a preponderance of the evidence at a later adjudication.
The Court of Appeals considered the sufficiency determination in In re Parentage of J.D.W., 14 Wn. App. 2d 388, 471 P.3d 228 (2020). The court reversed a trial court's dismissal of a de facto parentage action, holding that the trial court erred in dismissing the action after concluding that petitioner had failed to meet the requisite threshold "standing" allowing him to maintain a de facto parentage action.
The trial court dismissed the de facto parentage petition after determining that the petitioner had failed to refute the mother's assertion that continuing the relationship between the petitioner and the children was not in the children's best interests. The mother alleged that the children were unsafe with the petitioner because he lacked mental, physical, emotional, and financial stability, and she alleged that he was controlling and abused alcohol, narcotics, and steroids.
The appellate court found that the required "standing" that needed to be established for a de facto parentage petition to proceed to a full hearing was something other than proof at the outset of each substantive element of de facto parentage. The court decided that a petitioner who demonstrates that they "unequivocally parented the child as part of the child's family unit and that a legal parent consented to and fostered a parent-child relationship between the petitioner and child" meets the threshold showing, and a...
