Due Process in a Washington De Facto Parentage Proceeding

In some circumstances, Washington family law may recognize a person as a de facto parent, or a person who is not a child’s biological or adoptive parent, but who has the rights and responsibilities of a legal parent.  A person seeking to be declared a de facto parent must prove the elements set forth in RCW 26.26A.440(4) by a preponderance of the evidence.  They must show that they lived with the child for a significant period, consistently took care of the child, engaged in “full and permanent” parenting responsibilities without expectation of compensation, held the child out as their own, and established a parental relationship with the child that was “fostered or supported” by another parent of the child.  Additionally, they must show that continuing the relationship is in the child’s best interest.

A mother recently appealed a court order awarding her former romantic partner the rights of a legal parent to her child.  According to the appeals court, the mother’s relationship with the petitioner began while she was pregnant with the child and continued until the child was about nine years old.  The petitioner was not the child’s biological father, but petitioned for de facto parentage after his relationship with the mother ended. The mother wanted to move out of state to be closer to her family, but remained in Clark County to respond to the petition.


The petitioner alleged he provided the child “emotional and material support.” He filed documents, including evidence the school listed him as the child’s guardian and emails with the child’s teacher, principal, and school counselor.  He also submitted transcripts of videos in which he and the mother stated he would be the child’s father and the child called him “daddy.”

The mother denied that the petitioner provided consistent caretaking, that he established a “bonded and established” parental relationship, and that continuing the relationship would be in the child’s best interest.

The trial court asked if the parties wanted a guardian ad litem appointed for the child. The mother’s attorney responded affirmatively, but the father’s attorney expressed concern the “child [had] been coached . . .” The trial court stated it was “clear” the mother had tried “to disenfranchise the child from [the petitioner]”  and declined to appoint a guardian ad litem

The trial court stated it thought the petitioner had met the required burden of proof, before the parties even presented their witnesses or arguments.

The mother testified the petitioner supported her and the child financially while she was in school.  She said he spent most of his time in his room.  She said he “absolutely insisted” on taking responsibility for the child’s homeschooling, but ultimately left her to do “everything.”

The mother and petitioner were in a polyamorous relationship.  The mother testified her other partner stayed at the house and homeschooled the child while she was away with health issues. The partner also testified that he made most of the meals while the mother was sick.

The trial court did not require the petitioner to testify. The court acknowledged an “imbalance of power” between the parties and that the mother had been dependent on the petitioner.

The trial court concluded the petitioner was the child’s legal parent.  The trial court found he lived with the child more than half the child’s life and the parties agreed he was a regular member of the child’s household.  The court also found he “provided consistent caretaking of” the child without expectation of compensation. It also found the mother had “fostered and supported the bonded and dependent relationship. . .”

The appeals court noted that the trial court’s findings generally recited the statutory elements rather than identifying specific facts to support them.  Additionally, the trial court did not make determinations regarding credibility.

Due Process

The mother appealed, arguing she had not been allowed to cross-examine the petitioner and therefore had not receive a proper “proceeding to adjudicate parentage” pursuant to RCW 26.26A.440(4).

The de facto parentage statute does not state what must be included in a proceeding to adjudicate parentage.  The proceeding must, however, comply with procedural due process requirements. To determine if procedures interfering with fundamental rights comply with Fourteenth Amendment due process rights, the court applies the Mathews v. Eldridge test by balancing the private interest, the risk of an erroneous deprivation of the private interest and the probable value of additional procedural safeguards, and the government’s interest.

Parents have a fundamental liberty interest in making decisions regarding their children’s care.  Awarding rights regarding the child to someone other than a legal parent interferes with the fit legal parent’s fundamental right to make decisions about the child. Washington case law has generally favored strong procedural protections in matters relating to the right to parent.  The appeals court concluded the first factor weighed in favor of requiring a full adjudicative hearing with the opportunity for the petitioner to both testify and be crossed examined.

The risk under the second factor is high when the outcome is based on subjective standards and the parent is not given an opportunity to meaningfully challenge the other party’s evidence.  The appeals court concluded a legal parent cannot adequately challenge the petitioner’s allegations and the judge does not have the opportunity to evaluate the petitioner’s credibility if the petitioner does not testify.  The appeals court further noted a de facto parentage proceeding is decided on subjective standards and the parties have intimate knowledge of the facts.

There is a government interest in just outcomes and in the wellbeing of children.  The appeals court noted the court’s opportunity to evaluate the petitioner’s credibility is important if the nature of the relationship between the petitioner and child is contested, because de facto parent status can be used to manipulate and control the legal parent.  The appeals court further noted the additional fiscal and administrative burdens would be minimal because the statute requires a proceeding.

The appeals court held a de facto parentage proceeding involving disputed material facts requires the petitioner to testify and submit to cross-examination.  The mother was not given a meaningful opportunity to be heard.  There were disputed material facts and the trial court did not require the petitioner to testify or allow the mother to cross-examine him. The appeals court concluded the trial court had not made any credibility determinations or meaningful findings of fact.  The testimony of the mother and her partner directly contradicted the petitioner’s allegations regarding his relationship with the child.  The trial court did not have the opportunity to evaluate the petitioner’s credibility.  Furthermore, the petitioner was able to challenge the mother’s credibility through cross-examination, but she was not afforded the same opportunity.  The error was not harmless because cross-examination could have undermined the petitioner’s allegations.

The appeals court reversed and remanded the case.  It instructed the trial court to determine if the petitioner had standing and whether an expedited standing hearing was necessary.  If the court determines he has standing, it must hold a proceeding in which the petitioner testifies and the mother has the opportunity to cross-examine him. The appeals court further instructed the trial court to enter findings specifically explaining how the elements are or are not met.  It also instructed the trial court to revisit the issue of appointing a guardian ad litem.

Consult a Knowledgeable Washington Family Law Attorney

If you are facing a custody dispute, whether with your child’s other parent or with someone seeking de facto parent status, a skilled Washington custody attorney can fight to protect your rights and your child.  Call Blair & Kim, PLLC, to set up a consultation.


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