non-biological parents

What Is A De Facto Parent?

Goldberg JonesChild Custody, Featured Posts 2 Comments

Often times the person or people caring for a child aren’t the biological parents. In juvenile dependency cases, the court calls these individuals the de facto parent.

Most people think of a family as consisting of two parents and a couple of kids. Maybe the dog shows up in the family portrait. That’s the image that often springs immediately to mind. But families come in all shapes, sizes, and varieties.

When it comes to child custody, the best interests of the children take precedence over other concerns. That’s the general overriding rule. In a majority of cases, the court considers remaining with a biological parent the best choice.

That’s not always an option, however. A biological parent usually has the inside track, but in situations where the child’s safety, health, or well-being is in question, a de facto parent may assume custody.

Related Reading: 5 Missteps That Can Hurt Your Custody Case

What Is A De Facto Parent?

The California Rules of Court rule 5.502(10), defines a de facto parent as:

“[A] person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection, and who has assumed that role for a substantial period.

The most common conditions where the court names a de facto parent are in cases of abuse, abandonment, and neglect.

Essentially, when a parent can’t meet a minor child’s needs or places them in harm’s way.

Courts may also relocate children if parents are involved in criminal activity or place the kids in otherwise potentially hazardous situations.

In these cases, a non-biologically related adult may step in. This is often a stepparent, a distant relation, or another grown-up. If you’ve been caring for a child, the court may allow you to continue this role. There are, however, conditions to meet.

According to California law, a person can become a de facto parent if:

  • “The child is a dependent of the juvenile court;”
  • “You are or have been taking care of the child every day;” or you
  • “[H[ave been acting as the child’s parent;” or you
  • “[A]re meeting (or have met) the child’s needs for food, shelter, and clothing. You have also met the child’s needs for care and affection.”

When making such a decision, the court weighs a number of variables. Whether or not a child and adult share a psychological and emotional bond, if the adult has acted as a parent on a day-to-day basis, if the adult has information about the child that aids the court and attends juvenile hearings regularly; all of these factor into the ruling.

Related Reading: Marijuana and Child Custody: Can I Still Smoke Weed?

De Facto Parents’ Rights

Caring for a child obviously comes with a great deal of responsibility. But if a judge rules that you’re a fit, this also confers certain rights.

As a de facto parent, California law permits you:

  • To be present at any relevant hearings.
  • Have a lawyer represent you; in some cases, the court may even appoint one.
  • To present evidence and even cross-examine witnesses if need be.

Outside of providing the usual routine care for a child, being deemed a de facto parent essentially allows you to participate in any official proceedings that directly impact that child.

Becoming A De Facto Parent

As with most legal matters, becoming a de facto parent is a process. You must fill out a De Facto Parent Request form. This asks for all of your relevant contact information and explicitly states your intentions.

Additionally, you must fill out and submit a De Facto Parent Statement. This offers you the opportunity to state your case. You lay out your argument for custody and list everything you’ve done for the child in question.

Your application should include information about your relationship with the child:

  • How well you know him or her.
  • The ways you care for the child.
  • How you fulfill the child’s needs and support their overall well-being.

You can also attach letters of reference from people who know both you and the child and can attest to your relationship. Though this is an optional step, experts recommend following this course of action. These letters may be from a doctor, therapist, caseworker, church leader, teacher, or another individual with knowledge of the situation.

The judge takes all of this into account and decides whether or not naming you the de facto parent is indeed in the child’s best interest. If your application fits the criteria, and it truly benefits the child, the court may sign off.

Related Reading: Types of Child Custody

Comments 2

  1. I am currently pregnant. The father of the unborn baby has a 16 month old daughter with another woman whom he is no longer with. The father is afraid to be in my life and in our unborn child’s life because he is afraid that I will receive de facto parental rights of his 16 month old and should things not work out between us is afraid that I would be granted custody of his daughter. How likely is this to occur?

    1. Post

      Yvonne, thanks for reaching out. That’s a complicated situation. I passed your contact information along to Zephyr Hill, our managing attorney. He will reach out to you shortly and give you a better answer than we can get into here.

Leave a Reply

Your email address will not be published. Required fields are marked *