In re Custody of B.M.H.

FILE

IN CLE:FlKS OFFICE

SUPREME COURT, STATE OF WASHINGTON

DATE !~OV 2 'l 2013

?Xackn. c

CHIEF JUSTICE

f

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

)

In the Matter of the Custody of B .M.H. ) No. 86895-6-'

)

MICHAELHOLT, )

)

Respondent, )

) EnBanc

v. )

)

LAURIE HOLT, )

) Filed Nil\/ 2 7 1'0!:-i

Petitioner. )

GONZALEZ, J.-B.M.H.'s natural father died six months before he was born.

His mother's former boyfriend, Michael Holt, was present at B.M.H.'s birth and,

shortly afterward, married his mother, Laurie Holt. Mr. Holt has petitioned for third

party custody under chapter 26.10 RCW or, alternatively, an adjudication of de facto

parentage. The primary question for review is whether, under In re Parentage of MF.,

168 Wn.2d 528, 228 P.3d 1270 (2010), no former stepparent may bring a de facto

parentage petition. We are also asked to decide whether there was adequate cause to

support Mr. Holt's nonparental custody petition.

In re Custody ofB.MH, No. 86895-6

We find Mr. Holt has not met the high burden imposed on those seeking third

party custody. However, we find he is entitled to maintain his de facto parentage

action. The Court of Appeals correctly concluded that our holding in MF. does not

bar Mr. Holt from petitioning for de facto parentage The legislature inevitably did not

contemplate every conceivable family constellation, and drawing an arbitrary

categorical bar based on an individual's status as a stepparent or a former stepparent

would preclude legitimate parent-child relationships from being adjudicated. Unlike

the specific factual scenario in MF., the circumstances claimed by Mr. Holt have not

been contemplated by the legislature and addressed in Washington's statutory scheme.

Mr. Holt alleges that Ms. Holt, B.M.H. 's only other parent, consented to and fostered

his parent-child relationship with B.M.H., and we have already held that by requiring

consent to be proved, the de facto parentage test adequately protects parents'

fundamental rights. See In re Parentage ofL.B., 155 Wn.2d 679,701,712, 122 P.3d

161 (2005). We affirm in part, reverse in part, and remand to the trial court for further

proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Ms. Holt and Mr. Holt began a romantic relationship in 1993 and had a son,

C.H., in 1995. The couple separated in 1998, without having married, and Ms. Holt

soon became engaged to another man. Unfortunately, her fiance died in an industrial

accident in 1999 while she was three months pregnant with his biological child,

B.M.H.

2

In re Custody of B.MH, No. 86895-6

Mr. Holt provided significant emotional support to Ms. Holt during the

pregnancy, was present at B.M.H.'s birth, and even cut B.M.H.'s umbilical cord. Mr.

Holt and Ms. Holt married shortly after B.M.H.'s birth but divorced in 2001. The

resulting parenting plan designated Ms. Holt as C.H.'s primary residential parent and

gave Mr. Holt residential time every other weekend. The parenting plan did not

include provisions for B.M.H., but the parties do not dispute that B.M.H. essentially

followed the same visitation schedule as C.H.

Mr. Holt was actively involved in B.M.H.'s life. In 2002, Ms. Holt changed

B.M.H.'s last name from the biological father's last name to Mr. Holt's last name.

Ms. Holt and Mr. Holt discussed Mr. Holt's adopting B.M.H. in 2007, but according

to the guardian ad litem (GAL), adoption was not pursued because of the effect it

might have on the survivor benefits that B.M.H. receives by virtue of his biological

father's death.

Ms. Holt married another man in 2007 but divorced in 2008. During that

relationship, Mr. Holt claims that Ms. Holt started to separate B.M.H. from Mr. Holt's

visitations with C.H. In the summer of2009, C.H. moved in with Mr. Holt. The

parties dispute the reason for the move.

In late 2009 or early 2010, Mr. Holt learned that Ms. Holt planned to move

with B.M.H. from Vancouver, Washington, to her new boyfriend's home in Castle

Rock, about 50 miles away. On February 23, 2010, Mr. Holt filed a nonparental

custody petition, alleging that Ms. Holt was not a suitable custodian for B.M.H. He

3

In re Custody of B.MH, No. 86895-6

explained that Ms. Holt "is threatening to move [B.M.H.] out of the area and thus

disrupt the close relationship that [he] and [B.M.H.] have together." Clerk's Papers

(CP) at 4. Mr. Holt also asked the court to find that he was B.M.H. 's de facto parent.

Mr. Holt alleged that "[Ms. Holt] held [him] out as the child's father in all respects";

that he and B.M.H. are "extremely bonded"; and that "[B.M.H.] refers to [him] as his

father." CP at 4.

Mr. Holt submitted a declaration with his petition. Mr. Holt's declaration

recounted his visitation history with B.M.H. after he and Ms. Holt divorced:

Since the time of our divorce when Laurie does not have a boyfriend or

husband in her life we communicate fabulously and we don't have issues with

regard to our residential time with the children. However, Laurie also has a

disturbing pattern of getting into multiple and very short-term relationships

with other men and frequently during those times she has on occasion tried to

limit my involvement with our son, [B.M.H.].

CP at 20. Mr. Holt's declaration stated that during Ms. Holt's first subsequent

marriage she "made some minimal efforts to reduce my time with B.M.H." !d. Mr.

Holt described an occasion when Ms. Holt told him that he could no longer see

B.M.H. because he had given B.M.H. a birthday card from B.M.H.'s maternal

grandparents against her wishes. Mr. Holt stated that in August 2007, when Ms. Holt

started to date the man she married in December 2007, "she began to pull [B .M.H.]

away from seeing me. For the first time in [B.M.H.]'s 8 year life[, she] began

splitting [B.M.H.] and [C.H.] up during visitation." Id. Ms. Holt divorced that

husband in 2008, and according to Mr. Holt, "Laurie has had a number of

4

In re Custody of B.MH ~No. 86895-6

relationships since her divorce in 2008 .... However~ fortunately until now Laurie

has not allowed these relationships [to] interfere[] with my relationship with

[B.M.H.]" CP at 21. He further stated that after Ms. Holt's 2008 divorce, she has

"started relationships and moved several different men in and out of her home in

Vancouver. These relationships have been confusing and disruptive to [B.M.H.]." CP

at 22.

Along with his declaration, Mr. Holt submitted copies of a photograph album

that Ms. Holt made him for Father's Day, which contained handwritten captions such

as, "The first time you met your son, [B.M.H.]" and "There was no doubt he is your

son," as well as a photograph of the order changing B.M.H. 's last name to Mr. Holt's

last name. CP at 49-52.

Mr. Holt also submitted declarations from a co-worker and from his wife

before Ms. Holt, describing him as a dedicated father. Mr. Holt's former wife stated:

Over the 10 years I have known [B.M.H.], Michael has never treated him any

differently than any of his other children. [B.M.H.] is as loved and as nurtured

as his brother [C.H.] .... I can say state unequivocally that [B.M.H.] sees

Michael as his one and only father and he is as loved and bonded with Michael

as any boy to his father.

CP at 29. Her declaration also states:

Over the years I've watched as ... Laurie[] has attempted to bring other

boyfriends, of often transitory and short term relationships, into [B.M.H.]'s life.

On some of those occasions Laurie has tried to limit Michael's involvement

with [B.M.H.] for short periods of time when she has a new boyfriend and

wants him to be involved in [B.M.H.]'s life.

CP at 30.

5

In re Custody ofB.MH, No. 86895-6

The court ordered a GAL at Mr. Holt's request and ordered Ms. Holt to keep

B.M.H. in his Vancouver school pending the GAL's report and to continue to allow

Mr. Holt regular residential visitation with B.M.H.

On March 24, after a hearing, the court found that Mr. Holt had established a

prima facie case for de facto parentage. Ms. Holt moved for revision, and before the

revision hearing this court issued MF., 168 Wn.2d 528. The parties debated MF. 's

effect on Mr. Holt's de facto parentage action, and after two hearings, the trial court

granted Ms. Holt's revision motion and dismissed Mr. Holt's de facto parentage

action, finding that "MF. ... excludes [Mr. Holt from asserting a de facto parentage

cause of action] based on his former marriage to [Ms. Holt] and on the filing of a

nonparental custody action." CP at 299-300.

On May 19, the GAL submitted a report stating that B.M.H. viewed Mr. Holt

as a father and that it would be detrimental for B .M.H. to terminate contact with Mr.

Holt.

Before the adequate cause hearing on the nonparental custody action, Mr. Holt

submitted two more declarations-one by his mother and one by Ms. Holt's father,

stating that B.M.H. viewed Mr. Holt as his father. At the adequate cause hearing, Mr.

Holt informed the trial court that "removing [him] from [B.M.H.]'s life as his father"

would be detrimental to B.M.H.'s growth and development.

On August 20, the trial court found that adequate cause existed to proceed to a

show cause hearing. The adequate cause finding reads:

6

In re Custody of B.MH, No. 86895~6

The Guardian Ad Litem has testified that it is in the child's best interest to have

a continued relationship with the petitioner, [Mr. Holt]. Based upon all the

affidavits, declarations and guardian ad litem report, the Court believes there is

enough documentation set forth to proceed to trial on the non parental custody

petition. The Court finds that if the Respondent/mother denies contact between

Petitioner and minor child it would cause actual detriment to the minor child's

growth and development if the relationship between the minor child and the

Petitioner is not protected, and the Court has concerns that the mother may

withhold visitation contact in the future.

CP at 155. At Mr. Holt's request, the trial court appointed an expert to determine

"whether actual detriment would result in the termination of the relationship between

Michael and [B.M.H.]" CP at 145.

Ms. Holt moved for discretionary review of the trial court's adequate cause

finding under RAP 2.3(b )(2). After receiving CR 54(b) certification from the trial

court, Mr. Holt appealed the trial court's dismissal of his de facto parentage action.

The Court of Appeals granted discretionary review of the trial court's adequate cause

finding and consolidated review with Mr. Holt's de facto parentage appeal. The Court

of Appeals reinstated the de facto parentage petition and affirmed the order for a show

cause hearing on the nonparental custody petition. In re Custody ofB.MH., 165 Wn.

App. 361, 267 P.3d 499 (2011). Ms. Holt petitioned this court for review, which we

granted. In re Custody ofB.MH., 173 Wn.2d 1031,277 P.3d 668 (2012).

II. ISSUES

(1) Whether Mr. Holt established adequate cause for a show cause hearing on his

nonparental custody petition.

(2) Whether Mr. Holt is barred from proving that he is B.M.H. 's de facto parent.

7

In re Custody ofB.MH, No. 86895-6

(3) Whether either party should be awarded attorney fees.

III. . ANALYSIS

In parentage and child custody disputes we afford considerable deference to

parents as we balance their fundamental right to make decisions concerning the care,

custody, and control of their children with the interests of other parties and the need to

ensure stable and safe environments for children. See In re Custody ofSmith, 137

Wn.2d 1, 13-14, 969 P.2d 21 (1998), aff'd sub nom. Troxel v. Granville, 530 U.S. 57,

120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality opinion). We find that the trial

court erred by finding adequate cause on the third party custody petition and

dismissing Mr. Holt's de facto parentage petition. Mr. Holt's allegations about Ms.

Holt's behavior, if proved, would not meet the high burden of showing that Ms. Holt

is unfit or that her continued custody of B .M.H. would result in actual detriment to his

growth and development.

But Mr. Holt is entitled to an adjudication of whether he is B.M.H.'s de facto

parent. Legal parent-child relationships arise in various ways under Washington law,

including biology, presumptions of parentage (chapter 26.26 RCW), and adoption

(chapter 26.33 RCW). We hold that the fact that Mr. Holt was once B.M.H.'s

stepfather is not an automatic bar to establishing de facto parentage. We found the

specific factual scenario in MF. was contemplated by the legislature and addressed in

the third party custody statute, but we cannot say the same of the circumstances here,

where Mr. Holt alleges he formed a parent-child relationship with the consent of all

8

In re Custody of B.MH, No. 86895~6

existing parents after entering B.M.H.'s life at birth following the death ofB.M.H.'s

biological father. Because there is no statutory avenue for Mr. Holt to petition for

parentage, the de facto parentage doctrine fills this statutory void and provides for

adjudication of whether Mr. Holt has undertaken a permanent role as B.M.H.'s parent.

1. Adequate Cause on Third Party Custody Petition

Under chapter 26.10 RCW, a third party can petition for child custody, but the

State cannot interfere with the liberty interest of parents in the custody of their

children unless a parent is unfit or custody with a parent would result in "actual

detriment to the child's growth and development." In re Custody ofE. A. T. W., 168

Wn.2d 335, 338, 227 P.3d 1284 (2010); In re Custody of Shields, 157 Wn.2d 126,

142~43, 136 P.3d 117 (2006). The law'$ concept of the family rests in part on a

presumption that "natural bonds of affection lead parents to act in the best interests of

their children," Parham v. J.R., 442 U.S. 584, 602, 99 S. Ct. 2493, 61 L. Ed. 2d 101

( 1979) (citing 1 WILLIAM BLACKSTONE, COMMENTARIES *44 7), and only under

"'extraordinary circumstances"' does there exist a compelling state interest that

justifies interference with the integrity of the family and with parental rights. Shields,

157 Wn.2d at 145 (quoting In reMarriage ofAllen, 28 Wn. App. 637, 649, 626 P.2d

16 (1981 )). To limit disruptions in family life, chapter 26.10 RCW places a high

threshold burden on a petitioner seeking nonparental custody to allege specific facts

that, if proved true, would meet this standard. E.A.T. W., 168 Wn.2d at 338-39; RCW

26.10.032(1). If the court finds adequate cause for hearing on the petition, the burden

9

In re Custody ofB.MH, No. 86895-6

shifts to the respondent to show cause why the requested order should not be granted.

RCW 26.1 0.032(2).

A parent is unfit if he or she cannot meet a child's basic needs, and in such

cases, the State is justified in removing the child from the home and in certain cases,

permanently terminating parental rights. RCW 26.44.010 (providing that in

"instances of nonaccidental injury, neglect, death, sexual abuse and cruelty to children

by their parents" and "where a child is deprived of his or her right to conditions of

minimal nurture, health, and safety, the state is justified in emergency intervention

based upon verified information"); see also Shields, 157 Wn.2d at 142-43.

Whether placement with a parent will result in actual detriment to a child's

growth and development is a highly fact-specific inquiry, and "'[p]recisely what

might [constitute actual detriment to] outweigh parental rights must be determined on

a case-by-case basis."' I d. at 143 (quoting Allen, 28 Wn. App. at 649). In Shields, we

noted that when this heightened standard is properly applied, the requisite showing

required by the nonparent is substantial and a nonparent will be able to meet this

substantial standard in only '"extraordinary circumstances."' Id. at 145 (quoting

Allen, 28 Wn. App. at 649). The actual detriment standard has been met, for example,

when a deaf child needed a caregiver who could effectively communicate with the

child and the father was unable to do so, see Allen, 28 Wn. App. at 640-41, when a

suicidal child required extensive therapy and stability at a level the parents could not

provide, see In re Custody ofR.R.B., 108 Wn. App. 602,31 P.3d 1212 (2001), and

10

In re Custody of B.Mli, No. 86895-6

when a child who had been physically and sexually abused required extensive therapy

and stability at a level the parent could not provide, see In re Custody of Stell, 56 Wn.

App. 356, 783 P.2d 615 (1989).

Facts that merely support a finding that nonparental custody is in the "best

interests of the child" are insufficient to establish adequate cause. In re Custody of

S.C.D.-L., 170 Wn.2d 513, 516-17, 243 P.3d 918 (2010) (grandmother did not show

adequate cause to proceed to trial because "the petition implies it would be in the

child's best interest to reside with [grandmother], but the 'best interests of the child'

standard does not apply to nonparent custody actions" (internal quotation marks

omitted) (quoting Shields, 157 Wn.2d at 150)); In re Custody ofAnderson, 77 Wn.

App. 261, 266, 890 P.2d 525 (1995).

Mr. Holt does not allege that Ms. Holt is unfit. Rather, he alleges that neither

biological parent is a suitable custodian because "the biological father of the child is

deceased, having died before the birth of the child," and the "[mother] intends to

immediately relocate the child to a situation that is unstable." CP at 3. Mr. Holt's

petitions and declarations stated that since Ms. Holt's 2008 divorce she has "started

relationships and moved several different men in and out of her home in Vancouver"

and that "[t]hese relationships have been confusing and disruptive to [B.M.H.]." CP

at 22. Mr. Holt stated that he believes "that [B.M.H.] is at risk if this pattern

continues." CP at 24. According to Mr. Holt's declaration, "[B.M.H.] has expressed

to [Mr. Holt] that he does not want to move to Castle Rock and he is missing his

11

In re Custody ofB.MH, No. 86895-6

brother and it's all just happening too quickly for him." !d. Mr. Holt's former wife

stated in her declaration:

I have observed over the years how Laurie jumps right into relationships head-

on leaving very little time for the boys to adjust to the new man in her life. The

constant shuffling of boyfriends in and out of the household I believe has taken

its toll on both boys but especially on [B.M.H.] who sees Michael as his one

and only father."

CP at 30. Ms. Holt's biological father stated in his declaration that "having watched

the choices [Laurie] has made and the men come in and out of her life over the years,

I feel strongly that the choices she is making now are detrimental to the boys." CP at

133.

Mr. Holt's petition and declarations also stated that B.M.H. viewed Mr. Holt as

his father and the two had a close relationship; Ms. Holt was threatening to move

B.M.H. out of the area and thus disrupt this close relationship; Ms. Holt had

occasionally tried to limit Mr. Holt's contact with B.M.H. when she was involved in

relationships with other men, including during her 2007-08 marriage; and Ms. Holt

had once told Mr. Holt that he could not see B.M.H. CP at 19-20. The GAL

emphasized that B.M.H. viewed Mr. Holt as a father and that it would be detrimental

to B.M.H. if Ms. Holt terminated his contact with Mr. Holt. !d. The trial court found

in its order that "it would cause actual detriment to the minor child's growth and

development if the relationship between the minor child and the Petitioner is not

protected" and that the trial court had "concerns that the mother may withhold

visitation contact in the future." CP at 155.

12

In re Custody ofB.MH, No. 86895-6

Ms. Holt argues that the only harm found by the trial court was based on

impermissible speculation that Ms. Holt might terminate contact between Mr. Holt

and B.M.H. if she moved. Ms. Holt relies on In re Dependency ofT.L. G., 139 Wn.

App. 1, 156 P.3d 222 (2007), where the Court of Appeals held that opinions based on

a single incident that occurred five years earlier were not an adequate basis for finding

that a limitation on visitation for a parent during dependency proceedings was

necessary to "protect a child's health, safety, or welfare" under former RCW

13 .34.136(1 )(b )(ii) (2004). However, the facts alleged by Mr. Holt in his nonparental

custody petition point to multiple instances of Ms. Holt limiting his contact with

B.M.H. and to Ms. Holt's current decisions, rather than to a single incident in the

distant past. Moreover, this court will, if necessary, speculate about future

possibilities in making determinations about domestic relations. See, e.g., In re

Marriage ofKatare, 175 Wn.2d 23, 36-38, 283 P.3d 546 (2012), cert. denied, 133 S.

Ct. 889 (2013). Concern about future action is not necessarily impermissibly

speculative for findings of actual detriment.

But here, without more extraordinary facts bearing on B.M.H.'s welfare, the

prerequisites for a nonparental custody action have not been met. The concern that

Ms. Holt might interfere with Mr. Holt and B.M.H.'s relationship is insufficient to

show actual detriment under Shields and to meet the burden of production for

13

In re Custody ofB.MH., No. 86895-6

adequate cause under E. A. T. W 1 Although the importance of preserving fundamental

psychological relationships and family units was part of the court's analysis in Allen

and Stell, there were more extreme and unusual circumstances that contributed to the

finding of actual detriment. In each case, the child had significant special needs that

would not be met if the child were in the custody of the parent. Continuity of

psychological relationships and family units was particularly important where a child

had these special needs. Here, additional circumstances have not been alleged. This

court has consistently held that the interests of parents yield to state interests only

where "parental actions or decisions seriously conflict with the physical or mental

health ofthe child." In re Welfare ofSumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980)

(citing Parham, 442 U.S. at 603). Other facts in the affidavits point to Ms. Holt's

dating patterns and her decision to move to Castle Rock. These are not the kind of

substantial and extraordinary circumstances that justify state intervention with

parental rights. We reverse the Court of Appeals and dismiss the nonparental custody

petition without prejudice.

1

The Court of Appeals applied de novo review, and the parties do not challenge that standard.

We recognize that we apply a more deferential standard of review to adequate cause

determinations in somewhat related areas of law. See, e.g., In re Parentage of Jannot; 149 Wn.2d

123, 128, 65 P.3d 664 (2003). However, we need not answer today whether a more deferential

standard of review is appropriate for our review of a trial court's adequate cause determination

on a nonparental custody petition. See Grieco v. Wilson, 144 Wn. App. 865, 875, 184 P.3d 668

(2008) (citingJannot, 149 Wn.2d at 127), ajf'd sub nom. E.A.T. W, 168 Wn.2d 335. Even under

an abuse of discretion standard, our result would be the same.

14

In re Custody ofB.MH., No. 86895-6

2. De Facto Parentage

The Court of Appeals appropriately distinguished M.F. and reinstated Mr.

Holt's de facto parentage petition. We are presented with a scenario that was not

contemplated by the legislature and that merits an equitable remedy-where an

individual forms a parent-child relationship after entering the child's life at birth

following the death of the child's biological father but where the parents were married

for less than two years. Because there is no statutory avenue for Mr. Holt to petition

for parentage, the de facto parentage doctrine fills this gap and provides for

meaningful adjudication of whether Mr. Holt has undertaken a permanent role as

B.M.H. 's parent. The de facto parentage test protects Ms. Holt's constitutional rights

by requiring that she consented to the parent-child relationship.

Whether a former stepparent may acquire de facto parent status over his or her

former stepchild is a question of law that we review de novo. See MF., 168 Wn.2d at

531 (citing King v. Snohomish County, 146 Wn.2d 420,423-24,47 P.3d 563 (2002)).

De facto parentage is a flexible equitable remedy that complements legislative

enactments where parent-child relationships arise in ways that are not contemplated in

the statutory scheme. See L.B., 155 Wn.2d at 701, 706. InL.B., we identified a

"statutory silence regarding the interests of children begotten by artificial

insemination" and we granted equitable relief. Id. at 694 n.9. Two women who had

lived together in a long-term relationship decided to have a child. One of the women

conceived using donor sperm. Id. at 682. For six years, the women coparented the

15

In re Custody of B.MH, No. 86895-6

child. !d. Some time after they separated, the biological mother terminated contact

between her former partner and the child, and the former partner petitioned for

recognition as the child's de facto parent. !d. at 684-85. Because there was no

statutory means by which the former partner could establish her parental status, we

adopted the de facto parentage doctrine established by the Wisconsin courts. !d. at

702-07 (citing In re Custody ofH.S.H-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995)).

Establishing de facto parentage requires a showing that (1) the natural or legal

parent consented to and fostered the parent-like relationship; (2) the petitioner and

child lived together in the same household; (3) the petitioner assumed obligations of

parenthood without expectation of financial compensation; and (4) the petitioner has

been in a parental role for a length of time sufficient to have established with the child

a bonded, dependent relationship, parental in nature. !d. at 708. De facto parent

status is "'limited to those adults who have fully and completely undertaken a

permanent, unequivocal, committed, and responsible parental role in the child's life.'"

155 Wn.2d at 708 (quoting C.E. W v. D.E. W, 2004 ME 43, 845 A.2d 1146, 1152).

The de facto parentage doctrine incorporates constitutionally required deference to

parents by requiring that the biological or legal parent consent to and foster the parent-

like relationship. Once a petitioner has made the threshold showing that the natural or

legal parent consented to and fostered the parent-like relationship, the State is no

longer "interfering on behalf of a third party in an insular family unit but is enforcing

16

In re Custody ofB.M!i, No. 86895-6

the rights and obligations of parenthood that attach to de facto parents." Id. at 712.

Under the test, attaining de facto parent status is "no easy task." Id.

De facto parentage remains a viable equitable doctrine under Washington law.

We respectfully disagree with the dissent's suggestion to the contrary. Since L.B.,

legislative amendments have "clariflied] and expand[ ed] the rights and obligations of

state registered domestic partners and other couples related to parentage" but have not

abrogated the common law doctrine of de facto parentage. ENGROSSED SECOND

SUBSTITUTE H.B. 1267, at 1, 68th Leg., Reg. Sess. (Wash. 2011). "It is a well-

established principle of statutory construction that' [t]he common law ... ought not to

be deemed repealed, unless the language of a statute be clear and explicit for this

purpose."' Potter v. Wash. State Patrol, 165 Wn.2d 67, 77, 196 P.3d 691 (2008)

(alteration in original) (internal quotation marks omitted) (quoting Norfolk

Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co. ofVa., 464 U.S. 30,

35-36, 104 S. Ct. 304,78 L. Ed. 2d 29 (1983)); L.B., 155 Wn.2d at 695 n.11 ("'It must

not be presumed that the legislature intended to make any innovation to the common

law without clearly manifesting such intent."' (quoting Green Mountain Sch. Dist. No.

103 v. Durkee, 56 Wn.2d 154, 161, 351 P.2d 525 (1960))). No such intent appears

here. To the contrary, where the act formerly "govern[ ed] every determination of

parentage in this state," LAws OF 2002, ch. 302, § 103 (codified as RCW

26.26.021(1)), it now simply "applies to determinations of parentage" and "does not

create, enlarge, or diminish parental rights or duties under other law of this state,

17

In re Custody ofB.MH, No. 86895-6

LAWS OF 2011, ch. 283, § 2(1),(3) (codified as RCW 26.26.021). InL.B., we

chronicled the long standing history of Washington courts exercising equity powers

"in spite of legislative enactments that may have spoken to [an] area of law, but did so

incompletely," and we determined that our state's relevant statutes do not provide the

exclusive means of obtaining parental rights and responsibilities. 155 Wn.2d at 689.

That pronouncement stands as true today as it was then. Notwithstanding the 2011

amendments to the Uniform Parentage Act of 2002 (UPA), chapter 26.26 RCW, it is

"inevitabl[e] [that] in the field of familial relations, factual scenarios arise, which even

after a strict statutory analysis remain unresolved, leaving deserving parties without

any appropriate remedy, often where demonstrated public policy is in favor of

redress." !d. at 687. Where the legislature remains silent with respect to

determinations of parentage because it cannot anticipate every way that a parent-child

relationship forms, we will continue to invoke our common law responsibility to

"respond to the needs of children and families in the face of changing realities." Id. at

689. We cannot say that legislative pronouncements on this subject preclude any

redress to Mr. Holt or B.M.H., and it is our duty to apply the common law in a manner

"consistent with our laws and stated legislative policy." Id. at 707. 2

2

The UPA was amended in 2011 to specifically reference state-registered domestic partnerships

in various provisions and to specify that the UP A applies to persons of the same sex who have

children together to the same extent it applies to opposite sex couples who have children

together. FINAL B. REP. on Engrossed Second Substitute H.B. 1267, 68th Leg., Reg. Sess.

(Wash. 2011). Gender-specific terms in the act were replaced with gender-neutral tenns. Id.

Additionally, a new provision for the presumption of parentage was adopted. Now, a party is

"presumed to be the parent of a child if, for the first two years of the child's life, the person

18

In re Custody ofB.MH, No. 86895-6

Ms. Holt also argues that if de facto parentage remains a viable doctrine, our

case law precludes a stepparent from becoming a de facto parent. In MF., we held

that a former stepfather could not be his stepdaughter's de facto parent, but we did not

preclude all stepparents as a class from being de facto parents. To do so would be

contrary to legislative directive that children not be treated differently based on the

marital status of their parents. See RCW 26.26.106; 3 RCW 26.18.030. Side by side,

this case and MF. illustrate that there is no single formula for all stepparents. M.F. 's

biological parents separated shortly after her birth and shared parenting rights and

responsibilities under a parenting plan. We found that the specific factual scenario in

that case was contemplated by the legislature and addressed in chapter 26.10 RCW

and that applying the equitable remedy would "infringe[] upon the rights and duties of

M.F.'s existing parents." MF., 168 Wn.2d at 532. But arbitrary categorical

distinctions based on a petitioner's status as a stepparent or former stepparent would

preclude many legitimate parent-child relationships from being recognized. Here,

where it is alleged that an individual entered a child's life at birth following the death

of that child's second biological parent, and undertook an unequivocal and permanent

parental role with the consent of all existing parents but does not have a statutorily

resided in the same household with the child and openly held out the child as his or her own."

RCW 26.26.116(2) (as amended byLAws OF 2011, ch. 283, § 8).

3

"A child born to parents who are not married to each other or in a domestic partnership with

each other has the same rights under the law as a child born to parents who are married to each

other or who are in a domestic partnership with each other." RCW 26.26.106.

19

In re Custody ofB.MJ-1., No. 86895-6

protected relationship, justice prompts us to apply the de facto parent test. This

adequately balances the rights of biological parents, children, and other parties.

Ms. Holt contends that as a former stepparent, Mr. Holt has a sufficient

statutory remedy because he can file a nonparental custody petition under chapter

26.10 RCW. Suppl. Br. ofPet'r at 5-6. But that remedy was available in L.B. as well.

Precluding any individual from petitioning for de facto parentage because he or she

can file for nonparental custody would obliterate the de facto parentage doctrine

because any person not recognized as a parent may seek nonparental custody. See

RCW 26.1 0.030. As the Court of Appeals noted, the former partner in L.B. had the

ability to file a nonparental custody petition, yet we did not find this fatal to her claim.

See B.Mli, 165 Wn. App. at 378 n.13. Like the former partner inL.B., Mr. Holt has

no meaningful statutory means by which he can seek a determination of parentage,

and nonparental custody is an inadequate remedy to protect his weighty interests

relative to the child and its biological parent. By requiring proof that Ms. Holt fostered

the parent-child relationship, the de facto parentage doctrine will properly balance Mr.

Holt's interests in an adjudication of parentage against the deference we give natural

parents. We affirm the Court of Appeals and remand to the trial court for further

proceedings on Mr. Holt's de facto parent petition. 4

4

We granted leave to submit amicus briefs to the American Civil Liberties Union of

Washington, the Center for Children & Youth Justice, and Legal Voice, and passed the

petitioner's objection to the merits. After consideration, we hew to our decision to grant leave.

20

In re Custody ofB.MH, No. 86895~6

3. Attorney Fees

Ms. Holt and Mr. Holt each request attorney fees under RCW 26.1 0.080, which

provides that "the appellate court may, in its discretion, order a party to pay for the

cost to the other party of maintaining the appeal and attorney's fees in addition to

statutory costs." Balancing the parties' respective need and ability to pay, we decline

to award fees. See In re Custody of Brown, 153 Wn.2d 646, 656, 105 P .3d 991 (2005).

IV. CONCLUSION

When a parent is otherwise fit, a third party has a high burden under chapter

26.10 RCW to show extraordinary circumstances that justify interference with a

parent's constitutional rights. The facts presented by Mr. Holt do not satisfy that

burden, and we reverse the Court of Appeals on this issue. But like the former partner

in L.B., Mr. Holt alleges that he, Ms. Holt, and B.M.H. have formed a family in a

manner that was not contemplated by the legislature and he has no statutory means by

which he can seek a determination of parentage. The de facto parentage doctrine

properly balances his interests in an adjudication of parentage against the deference

we give biological parents, and we affirm the Court of Appeals on this issue and

remand to the trial court for further proceedings consistent with this opinion.

21

In re Custody ofB.MH, No. 86895-6

WE CONCUR:

22

In re Custody ofB.MH.

No. 86895-6

MADSEN, C.J. (concurring/dissenting)-The majority concludes that a stepparent

can seek custody of a child as a de facto parent. I disagree. First, when a parent marries,

the parent is highly likely to encourage her spouse, the stepparent, in pursuit of a

harmonious family life that includes a loving relationship with her child together with

shared responsibilities of child-rearing. This encouragement does not mean that the

parent consents to a permanent, life-long parent-child relationship between her child and

the stepparent if the marriage should end. And, as this court has previously noted, the de

facto parent test is too easily met in the stepparent-child setting. Facts that lend

themselves to an inference of consent to a parent-child relationship are indistinguishable

from facts that show the parent wants the marriage to prevail and a family unit to be

formed. When the marriage ends, the inference is no longer justifiable.

Much more importantly, the majority impermissibly overrides a parent's

fundamental constitutional rights to the care, custody, and control of her child.

Interference with a fit parent's parenting decision to maintain custody of her child is

permissible only if the stepparent makes a substantial showing that placement with the fit

No. 86895-6

Madsen, C.J. (concurring/dissenting)

parent would result in actual detriment to the child's growth and development. Our cases

and those of the Court of Appeals demand this proof when a stepparent seeks custody of

a child because the stepparent is a nonparent. There is nothing about the stepparent

setting that shows a lesser standard meets constitutional requirements and our cases are

clearly to the contrary.

The majority's relaxed standard for removing custody decision-making from the

parent will disproportionately impact women, and statistically many of these women will

live in poverty with limited resources to oppose legal actions for custody. 1 The majority

approval of de facto parent claims will also support custody actions by unmarried, former

cohabitating partners of a parent because the same analysis that the majority applies in

the stepparent context will as readily apply to the unmarried partner who for a time shares

family life with the parent.

Finally, the statutes that apply to this case are the third party custody statutes in

chapter 26.10 RCW. The majority and Justice Wiggins in his dissent-in-part discuss

other recent legislative enactments, reaching different conclusions about their meaning

and effect. They would be better advised to address these recent statutes when their

application is squarely presented.

1

In 2009, the poverty rate for custodial mothers was 30.4 percent. TIMOTHY S. GRALL, U.S.

CENSUS BUREAU, CONSUMER INCOME REPORT No. P60-240, CUSTODIAL MOTHERS AND FATHERS

AND THEIR CHILD SUPPORT: 2009, at 5 (2011), available at

http://www.census.gov/prod/2011pubs/p60-240.pdf. In 2012, about 30 percent offamilies with a

female householder lived in poverty. CARMEN DENA VAS-WALT, BERNADETTE D. PROCTOR, &

JESSICA C. SMITH, U.S. CENSUS BUREAU, CONSUMER INCOME REPORT NO. P60-245, INCOME,

POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2012, at 17 (2013),

available at http://www.census.gov/prod/2013pubs/p60-245.pdf.

2

No. 86895-6

Madsen, C. J. (concurring/dissenting)

Discussion

In In reMarriage of MF., 168 Wn.2d 528, 228 P.3d 1270 (2010), we held that the

common law de facto parent theory does not apply in the stepparent-stepchild context.

The majority says, however, that here, unlike in MF., a statutory "gap" exists that

prevents Michael Holt (Michael) from petitioning for parentage. Majority at 15.

We concluded in MF. that the stepparent could seek legal custody of the stepchild

under the third party custody statutes and therefore there was no need to recognize a

common law theory. MF., 168 Wn.2d at 532-33. Our holding was not limited to the

facts, however. Indeed, development of the third party custody statutes has proceeded

hand-in-hand with custodial actions brought by stepparents, as recognized in MF., and

no "gap" exists. See id. As we explained in MF., in In re Marriage ofAllen, 28 Wn.

App. 637, 645, 626 P.2d 16 (1981), the trial court had awarded custody of the child to a

nonparent, the stepmother, in the "best interests of the child." Unlike the child's father,

the stepmother was fluent in sign language and heavily involved in the special

educational environment nec~ssary for the growth and development of the child, who was

deaf and needed a special environment at home. Id. at 640-42.

The Court of Appeals upheld the custody determination but rejected the "best

interests of the child" standard as being applicable only in actions between parents under

existing custody provisions in former chapter 26.09 RCW, modeled on the Uniform

Marriage and Divorce Act. The Court of Appeals instead upheld the custody decision

after determining that the parent's constitutional rights were outweighed because actual

3

No. 86895-6

Madsen, C .J. (concurring/dissenting)

detriment to the child would result from placement with the fit father, who could not

effectively communicate with the child. I d. at 641, 649.

The legislature subsequently approved Allen's heightened standard of proof. In

1987, the legislature enacted third party custody statutes separate from the statutory

scheme that applies as between the parents. The third party custody statutes were

explicitly intended to reenact and continue the existing law that applied to actions

involving third party custody of children to distinguish this body of law from the custody

provisions of chapter 26.09 RCW. See In re Custody of Stell, 56 Wn. App. 356, 364-65,

783 P.2d 615 (1989) (discussing this history); RCW 26.10.010.

Although one of the third party custody statutes that was enacted, RCW 26.10.1 00,

then stated and continues to state that custody will be determined in the "best interests of

the child," in actions involving a nonparent the actual detriment requirement must be met

to permit interference with a fit parent's child-rearing decisions. This is because of the

legislature's express continuation of the existing law pertaining to third parties and

because of the parent's constitutional rights. The analysis from Allen continues to apply

if the child is in the custody of a parent and a stepparent/third party seeks custody, i.e.,

the heightened constitutionally mandated standard controls as explained in Allen and its

progeny. This is part and parcel of the body of third party custody law that the legislature

reenacted and continued in 1987. As in Allen, the Court of Appeals in Stell concluded

that in a custody proceeding involving a parent and a nonparent, the nonparent is required

4

No. 86895-6

Madsen, C. J. (concurring/dissenting)

to show that the child's parents are unfit or that placing the child with them would be

actually detrimental to the child~s growth and development. Stell~ 56 Wn. App. at 365.

In 2006~ we decided In re Custody of Shields, 157 Wn.2d 126~ 136 P.3d 117

(2006). Shields, like Allen~ involved a stepparent seeking custody after marriage to the

child~s parent ended.

We expressly recognized that a stepparent is a nonparent. !d. at 141 (observing

that in Allen custody was awarded "to a nonparent~ the stepmother"). We held:

When applied properly ... the actual detriment standard is

constitutional. The State has a compelling interest in protecting children~s

welfare and the remedy is narrowly tailored to meet the State~s interest.

Under the heightened standard~ a court can interfere only with a fit parent~s

parenting decision to maintain custody of his or her child if the nonparent

demonstrates that placement of the child with the fit parent will result in

actual detriment to the child~s growth and development. ...

. . . [W]hen this heightened standard is properly applied~ the requisite

showing required by the nonparent is "substantial" ... and a nonparent will

generally be able to meet this test in only "extraordinary circumstances."

!d. at 144-45 (citations omitted).

Thus~ we determined in Shields that a stepparent was a nonparent subject to

provisions in chapter 26.10 RCW and to the heightened constitutional standard that must

be applied when the custody issue is between a parent and a nonparent.

Then~ when we were asked to decide that a stepparent was a de facto parent in

MF.~ we recounted this history and said that in Shields~ where the action was brought by

a stepparent~ "we confirmed that under chapter 26.10 RCW[, the third party custody

scheme~] a third party may be granted custody" only when the third party demonstrates

5

No. 86895-6

Madsen, C.J. (concurring/dissenting)

"that placement of the child with the fit parent will result in actual detriment to the child's

growth and development." MF., 168 Wn.2d at 533; Shields, 157 Wn.2d at 144.

Thus, our state decisional and statutory law has heretofore provided that a

stepparent is a nonparent third party for purposes of custody actions. The legislature has

confirmed that the third party custody statutes and associated existing body of law applies

to stepparents. Under this continued body of law, stepparents, as third parties must show

either that the parent is unfit or that placement of the child with the parent is actually

detrimental to the child's growth and development before the parent's constitutional

rights to the care, custody, and control of the child may be invaded.

The majority fails to adhere to our precedent, fails to defer to the legislature's

express intent when enacting the third party custody statutes, and fails to protect a

parent's constitutional rights.

The majority says, however, that the facts here are unlike those in MF. and they

support the conclusion that no statutory avenue for seeking custody exists, unlike in MF.

In every case facts will vary. This is not a reason to say a statutory gap exists. More

importantly, the legislature's reenactment and continuation of existing law after Allen

provided an accessible "avenue ... for a stepparent seeking a legal, custodial relationship

with a child. The legislature has created and refined a statutory scheme by which a

stepparent may obtain custody of a stepchild." MF., 168 Wn.2d at 532.

Finally, it bears noting that the facts relied on in the majority to show that no

statutory remedy exists are the kind of facts that would be significant if the de facto

6

No. 86895-6

Madsen, C .J. (concurring/dissenting)

parent theory applied. See majority at 15. However, in MF. we refused to even consider

whether the stepparent could show factually that the prongs of the de facto parent test

were met. It made no difference whether the stepparent could meet the test because the

de facto parent test could not be applied at all. We said, "[T]he correct starting point is

not whether the de facto parent test has been met. The factors outlined in L.B. are

relevant only if this court first decides that the de facto parentage doctrine applies to the

circumstances presented in this case." MF., 168 Wn.2d at 534.

MF. dictates that a stepparent is not entitled to bring a custody action under a de

facto parent theory, and this result is necessarily follows from Allen and Shields.

The sole recourse for Michael is a third party custody action under chapter 26.10

RCW, and he in fact brings a petition under this chapter. The majority correctly holds

that he has failed to show that Laurie Holt (Laurie) is unfit or that placement of her child

with her results in actual detriment to the child's growth and development.

Once the majority has decided, as it does, that Michael's petition under the third

party custody statutes cannot proceed, it should end the analysis. But the majority does

not stop there. It proceeds with its impermissible de facto parent theory, notwithstanding

its conclusion that Michael has not made the required substantial showing sufficient to

justify impairment of Laurie's fundamental constitutional rights in the care, custody, and

control of her son.

The majority's approach is impermissible because it allows a stepparent to seek

custody in violation of a parent's fundamental constitutional rights in her child.

7

No. 86895-6

Madsen, C.J. (concurring/dissenting)

The majority believes, though, that the consent prong of the de facto parent test

protects the parent's constitutional rights. As we pointed out in MF., the de facto parent

test would be too-easily applied in the stepparent context, is ill-suited to the custody

issue, and makes no meaningful distinctions in this context. !d. We said about the

consent prong: "in the vast majority of cases a parent will encourage his or her spouse,

the stepparent, to act like a parent in relationship to the child." !d. at 535. Our concern is

echoed by one noted author, who says in connection with the American Law Institute's

treatment of de facto parents and its test that similarly includes consent:

Because agreement may be implied, this [part of the test] is satisfied when a

mother acquiesces to the partner's behavior-behavior that virtually any

mother would welcome in her partner, such as taking the child to the

doctor, reading to the child, helping the child get ready for bed, and making

dinner for the family.

Robin Fretwell Wilson, Trusting Mothers: A Critique of The American Law Institute's

Treatment of De Facto Parents, 38 HOFSTRA L. REv. 1103, 1112 (2010).

Accordingly, satisfying the consent prong is meaningless in the stepparent context.

Consent to coparent within the marriage and family unit is not the same as consent to a

life-long, parent-child relationship on the part of the stepparent to continue no matter

what happens to the marriage. Yet consent is precisely the hook upon which the majority

hangs its catch.

The other prongs are not particularly probative in the stepparent context, either.

We said in MH.:

[T]he second factor will nearly always be met-that "the petitioner and the

child lived together in the same household." [In re Parentage oj] L.B., 155

8

No. 86895-6

Madsen, C.J. (concurring/dissenting)

Wn.2d [679,] 708, 122 P.3d 161 [(2005)]. The third element is that the

petitioner assumed obligations of parenthood without expectation of

compensation, and one only has to envision the stepparent attending school

functions, helping the child get dressed in the morning, or engaging in the

other numerous events that together make up family life with a child to see

how easily this factor might be satisfied. The only variable in most cases, it

would appear, is the length of time the stepparent has been in a parental

role, and generally this would be merely a matter of how long the

relationship with the parent endures-hardly a basis for deciding parental

status.

MH., 168 Wn.2d at 535.

The majority's attempt to distinguish MF. is patently inconsistent with the

analysis in it. In MF., we explained both why the third party custody statutes apply to

stepparents and why the de facto test must not. As we observed in MF., Allen was the

existing law at the time the legislature reenacted and continued the existing law regarding

third party custody actions, and MF., Allen, and Shields require stepparents to make the

heightened constitutional showing of unfitness or detriment to obtain custody. 2

Finally, I note that in MF. there were two fit parents. This, of course, cannot be a

viable distinction because our statutory and constitutional law plainly contemplates and

protects the single parent just as it does two parents. A single parent's constitutional

rights in her child must be safeguarded every bit as vigorously as the constitutional rights

of two parents together.

2

We recently reiterated that under the third party custody statutes a custody order may be

granted to a nonparent only if the court finds that the parent is unfit or that placement with the

parent would result in actual detriment to the child's growth and development. In re Custody of

E.A.T. W., 168 Wn.2d 335,334,227 P.3d 1284 (2010). This standard is necessary to carry out

the constitutionally based requirement of according deference to parents in parent-nonparent

custody disputes. Id.

9

No. 86895-6

Madsen, C .J. (concurring/dissenting)

The majority also believes that the present case is analogous to L.B., and that just

as the third party custody statutes were available to the same-sex nonbiological parent in

L.B., the de facto parent theory is applicable here.

L.B. is not like the present case. In L.B., the same sex partners could not marry,

nor were rights equal to those of heterosexual parents recognized under state statutes at

the time. The two parties had been in a long-term committed relationship and did

everything they could do to create a child together. They could not marry and could not

together conceive their child, unlike heterosexual partners, but they deliberately set out to

and did initiate the pregnancy together and both before and after the child's birth acted in

every way as the child's parents.

In L.B., the de facto test was a necessary legal channel for attributing to the two

partners the parenthood that they already shared. Because of the nature of the parties'

relationship-as a same-sex couple-the parent who was not a biological parent could

otherwise be cut off from parental rights under the heightened showing that applies when

a nonparent seeks custody. The de facto status gave legal effect to a person who was and

always had been the child's parent. No acquired parenthood was ever at issue.

Recognizing this, this court applied the de facto parent theory that enabled the

nonbiological parent to seek custody under the "best interests of the child" standard

applicable between parents.

The circumstances in a stepparent context are not the same. Parentage exists in

the two biological parents who created the child and brought into existence the parent-

10

No. 86895-6

Madsen, C .J. (concurring/dissenting)

child relationship. Here, Laurie's child was created by her and her fiance, who passed

away before the child was born.

Without doubt, a stepparent may enter the picture and assume a role as a loving,

caring parental figure. Our laws permit a stepparent to seek custody of a child under the

third party custody statutes. Adoption is also a possibility. But a parent's constitutional

rights must be given precedence over the stepparent and it takes a very strong showing to

overcome a fit parent's rights. As we held in In re Custody of Smith, 137 Wn.2d 1, 20,

969 P.2d 21 (1998), aff'd sub nom. Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147

L. Ed. 2d 49 (2000) (plurality opinion), a fit parent is presumed to act in the child's best

interest and there must be a showing of harm to the child to overcome this presumption. 3

The majority's decision that de facto parent status is available to a stepparent

means that the stepparent is a parent in every respect. L.B., 155 Wn.2d at 710 ("we hold

that our common law recognizes the status of de facto parents and places them in parity

with biological and adoptive parents in our state"). This means that the stepparent will be

able to proceed under the "best interests of the child" standard that applies under chapter

26.09 RCW when two parents dispute custody of their child, an easier showing that

places the parent's and the stepparent's interests on a par.

This result is in tension with the common law view of stepparents and their

obligations to their spouses' children. One author points out how the concept of

parenthood traditionally related to the duties a stepparent has toward such children,

3

In In re Parentage ofC.A.MA., 154 Wn.2d 52, 109 P.3d 405 (2005), we confirmed that this

holding in Smith was not affected by the decision in Troxel.

11

No. 86895-6

Madsen, C .J. (concurring/dissenting)

saying that stepparents generally have had a recognized relationship with the child of his

or her spouse but no continuing duties if the marriage ends. June Carbone, The Legal

Definition of Parenthood: Uncertainty at the Core of Family Identity, 65 LA. L. REV.

1295, 1311-12 (2005). "The stepparents' responsibilities ... are not permanent" but

rather "may be relinquished at will." Id. at 1312. Absent adoption, stepparents have not

been viewed as having a permanent bond with the child, both because any obligation to

the child is derivative of the obligation to the legal parent and because, if marriage to a

legal parent triggered permanent support obligations to the child, it would discourage

remarriage. Id. at 1312-13.

Under our state law "[t]he obligation to support stepchildren shall cease upon the

entry of a decree of dissolution, decree oflegal separation, or death." RCW 26.16.205.

Thus, once the marriage ended without Michael having adopted the child, Laurie was

unable to compel Michael to pay support. The statute supports the view that Michael is

only in a parent-like relationship because of his marriage to Laurie and any rights and

responsibilities vis-a-vis Laurie's child are derivative of that relationship. Once the

relationship ends, so do these rights and responsibilities. He becomes a third party to the

children when the marriage ends. Laurie cannot compel him to provide child support, a

conclusion consistent with the derivative nature of his obligations.

However, if he were to obtain de facto parent status, he would have the rights and

obligations of a parent, as we said in L.B. His relationship to the child would become

primary and permanent, and he could seek custody under a "best interests of the child"

12

No. 86895-6

Madsen, C.J. (concurring/dissenting)

standard. If he did not seek de facto parent status, however, Laurie herself cannot compel

him to or make the argument herself, nor can she seek support for the child. This one-

sided paradigm is fundamentally at odds with the constitutional rights she has in her

child. Why should a stepparent be entitled to seek de facto parent status and then custody

under the lower "best interests of the child" standard when, once the marriage ends, the

parent has no ability to seek either a permanent relationship for her children with the

stepparent or support for the children.

The majority poses a threat to parents' constitutional rights that may be far-

reaching because of the sheer number of stepparents and stepchildren potentially affected,

the fact that the majority's analysis applies equally well to cohabitating partners of

parents, and because the majority appears inclined to find statutory "gaps" that must be

filled based solely on different factual circumstances, notwithstanding recent legislation.

An estimated 25 percent of children today will become part of a family including a

stepparent. Sarah H. Ramsey, Constructing Parenthood For Stepparents: Parents By

Estoppel and De Facto Parents Under the American Law Institute's Principles of the

Law of Family Dissolution, 8 DUKE J. GENDER & POL'Y 285, 287 (2001) (quoting

Frank F. Furstenberg, Jr., History and Current Status of Divorce in the United States, 4

FUTURE OF CHILDREN, Spring 1994, at 29, 35 4). Moreover, a large number of children

live with one parent, and predictably in a number of these cases there will be a stepparent

who is no longer married to the parent. Some "21 million children ... lived with one

4

Available at http://www.futureofchildren.org/futureofchildren/publications/docs/04 _ 0 1_02. pdf.

13

No. 86895-6

Madsen, C.J. (concurring/dissenting)

parent in 2012." JONATHAN VESPA, JAMIE M. LEWIS, AND ROSE M. KREIDER, U.S.

CENSUS BUREAU, POPULATION CHARACTERISTICS REPORT NO. P20-570, AMERICA'S

FAMILIES AND LIVING ARRANGEMENTS: 2012, at 23 (2013). 5 "[A]pproximately 1 in 5

White, non-Hispanic children (21 percent); 1 in 3 Hispanic children (31 percent); and 1 in

2 Black children (55 percent) lived with one parent" in 2012. ld. at 23-26. The vast

majority of family groups with one parent are mother-only groups. ld. at 13. 6

Nearly identical statistics reflect 2010 living arrangements involving custody of

children. In 2010, about 13.7 million parents had custody of22 million children under 21

years of age while the other parent lived elsewhere. TIMOTHY S. GRALL, U.S. CENSUS

BUREAU, CONSUMER INCOME REPORT No. P60-240, CUSTODIAL MOTHERS AND FATHERS

AND THEIR CHILD SUPPORT: 2009, at 2 (2011). 7 The majority of custodial parents were

mothers (82.2 percent). ld.

Census information also shows that cohabitation continues as a growing trend. In

2012, "more cohabiting adults lived with children who were not biologically related to

them than did married spouses." VESPA, LEWIS & KREIDER, supra, at 21. When such

couples separate, the nonparent can readily argue that the majority's decision and

analysis in this case support a de facto parent theory in the cohabitation context.

One author has describes such potential for broad application of the de facto

parent theory as "a thinned-out conception of parenthood" that is "primarily a function of

5

Available at http://www.census.gov/prod/2013pubs/p20-570.pdf.

6

These statistics for 2012 generally involve children under 18 years of age. VESPA, LEWIS &

KREIDER, supra, at 2.

7

Available at http://www.census.gov/prod/2011 pubs/p60-240.pdf.

14

No. 86895-6

Madsen, C.J. (concurring/dissenting)

co-residence" and that "would give former live-in partners access to a child" even when

opposed by the legal parent, "nearly always a child's mother." Wilson, supra, at 1109.

"Mothers are disproportionately affected by the extension of new parental rights to live-in

partners because most non-marital children and children of divorce live with their

mothers." Id. at 1109-10.

In short, the parents who are most likely to be affected by the majority's decision

are mothers who will often be members of a minority race or group. Many women faced

with custody disputes will have resources so limited that they are highly unlikely to be

able to afford to hire legal assistance in private custody disputes. Cf King v. King, 162

Wn.2d 378, 174 P.2d 659 (2007) (dissolution proceeding where residential placement of

children at issue; no right to appointed counsel at public expense); id. at 418 (addressing

negative impact on custody and closely related matters when indigent litigants lack

counsel); see generally GRALL, supra, at 4, 5 (over one-quarter, 28.3 percent, of custodial

parents had income below the poverty level in 2009; the poverty rate of custodial mothers

was 30.4 percent).

In Washington, as these national statistics suggest, a significant number of parents

may be subject to the majority's flawed analysis that can transform an ex-husband or ex-

wife who acquires a stepparent relationship with the parent's child, or a former

cohabitant, into a parent with all of the rights of a parent, including the right to seek child

custody under a "best interests of the child" standard without regard to the parent's

fundamental constitutional rights.

15

No. 86895-6

Madsen, C. J. (concurring/ dissenting)

"Best interests of the child" alone provides a greater opportunity for placing a

child where a court ultimately decides the child would be best off. But we have

cautioned against just this kind of result. We said in Smith that to consider that any lesser

standard than strict scrutiny can apply, such as "best interests of the child,"

would be the logical equivalent to asserting that the state has the authority

to break up stable families and redistribute its infant population to provide

each child with the "best family." It is not within the province of the state

to make significant decisions concerning the custody of children merely

because it could make a "better" decision.

Smith, 137 Wn.2d at 20 The majority's analysis brings to pass the very danger we

warned of in Smith. Regardless of how carefully couched, how plausibly stated, how

well-intended, the end result is a judicial choice, applicable far beyond this case, that the

child may be better off with the stepparent or even a former cohabitant. But the

constitutional rights in the care, custody, and control of the child are here held by Laurie,

not Michael and not anyone else, and "best interests of the child" is constitutionally

inadequate.

We have heretofore adhered to an strict scrutiny analysis when a fit parent's right

to autonomy in child-rearing decisions is at issue. We have done so to protect the

fundamental liberty interest that parents have in the care and welfare of their minor

children. See In re Welfare ofSumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980); accord

In re Dependency of Schermer, 161 Wn.2d 927, 941, 169 P.3d 452 (2007); Smith, 137

Wn.2d at 15; In re Welfare ofLuscier, 84 Wn.2d 135, 137, 524 P.2d 906 (1974). The

right to raise one's children is deemed essential. Meyer v. Nebraska, 262 U.S. 390, 399,

16

No. 86895-6

Madsen, C .J. (concurring/dissenting)

401, 43 S. Ct. 625, 67 L. Ed. 1042 (1923). "The liberty interest ... of parents in the care,

custody, and control of their children [] is perhaps the oldest of the fundamental liberty

interests recognized by [the United States Supreme] Court." Troxel, 530 U.S. at 65

(plurality opinion). The Court has "recognized on numerous occasions that the

relationship between parent and child is constitutionally protected." Quilloin v. Walcott,

434 U.S. 246,255,98 S. Ct. 549, 54 L. Ed. 2d 511 (1978). A "mother['s] ... right to the

care, custody, management and companionship of her minor children" are rights "more

precious" to her "than property rights." May v. Anderson, 345 U.S. 528, 533, 73 S. Ct.

840, 97 L. Ed. 1221 (1953). "It is cardinal with [the Court] that the custody, care and

nurture of the child reside first in the parents, whose primary function and freedom

include preparation for obligations the state can neither supply nor hinder." Prince v.

Massachusetts, 321 U.S. 158, 166,64 S. Ct. 438, 88 L. Ed. 645 (1944).

We must presume that a fit parent acts in the best interests of her child. In re

Welfare ofC.S., 168 Wn.2d 51, 55, 225 P.3d 953 (2010); Troxel, 530 U.S. at 68, 69

(plurality opinion). "The law's concept of the family rests on a presumption that parents

possess what a child lacks in maturity, experience, and capacity for judgment required for

making life's difficult decisions. More important, historically it has recognized that

natural bonds of affection lead parents to act in the best interests of their children."

Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed 2d 101 (1979).

The majority excuses its constitutional violations by an analysis that can turn

Michael into a parent, allowing him to proceed under the "best interests of the child"

17

No. 86895-6

Madsen, C.J. (concurring/dissenting)

standard. Although he is not the child's natural, biological, or adoptive parent, as a de

facto parent he can proceed without regard to Laurie's fitness as a parent and without

having to show detriment to the child because Laurie's rights are no longer superior to

his.

I do not ascribe to the majority's loosely reframed de facto parent standard for

stepparents. Our cases are to the contrary, and the fundamental rights a parent has in the

care, custody, and control of her child are too precious to cast aside as no longer of any

moment. There is no "gap" in our statutory scheme that demands recognition of this

common law theory in the stepparent context, and the de facto parent test itself is a low

hurdle over a parent's constitutional rights.

As Justice Wiggins urges in his dissent-in-part, we should require a much clearer

relinquishment of constitutional rights than from facts showing that Laurie encouraged

Michael to form a relationship with her child. Agreement to a close relationship and

shared child-rearing responsibilities and rewards within the marriage is not equivalent to

a life-long parent-child relationship, and is insufficient to show that Laurie has given up

her fundamental rights.

Finally, I comment briefly on the conclusions drawn by the majority and the

dissent-in-part about recent changes in statutes addressing parents. In my view, it would

be better to address the new enactments in cases where they are at issue. However,

without further comment, I do go so far as to say that I believe the legislature has closed

the statutory gap we identified in L.B.

18

No. 86895-6

Madsen, C .J. (concurring/dissenting)

Conclusion

I dissent from the majority opinion because the de facto parent theory should not

be applied in the stepparent context. I agree with the majority, however, that Michael

Holt has failed to make a sufficient showing that Laurie Holt is unfit or that placement of

her child with her would actually result in detriment to the child's growth and

development. Accordingly, his petition for custody of the child must be rejected.

19

No. 86895-6

Madsen, C.J. (concurring/dissenting)

20

In re Custody of B.M.H.

No. 86895~6

WIGGINS, J. (dissenting in part 1)-When this court provided a de facto

parentage remedy in In re Parentage of LB., 155 Wn.2d 679, 122 P.3d 161 (2005),

we were filling a statutory gap that made it difficult for a woman to become the legal

parent of her same-sex partner's biological child. In 2009, the legislature filled this

gap by creating parity between state registered domestic partners and married

spouses in all respects, including parentage. Because the legislature filled the

statutory gap at issue in LB., the need for a de facto parentage doctrine no longer

exists. Despite the fact that the 2009 domestic partnership amendments fully

resolved the concern we addressed in LB., the majority feels that its role is to

legislate by finding additional-albeit imaginary-gaps in the legislative scheme and

purporting to fill them.

Equally troubling is where the majority's decision leaves us in light of ,

significant 2011 amendments to the Uniform Parentage Act of 2002 (UPA), chapter

26.26 RCW. These amendments essentially codify the de facto parentage doctrine,

signaling the legislature's intent to provide a comprehensive statutory-rather than

judge-made-framework to determine the circumstances under which the parent-

1

I concur with the majority's resolution of Michael Holt's third party custody claim under chapter

26.10 RCW, see majority at 9-14, and do not address it further.

No. 86895-6 (Wiggins, J., dissenting in part)

child relationship is formed in Washington. These amendments do not apply to this

case but will apply to all parentage claims brought after July 22, 2011. See LAWS OF

2011, ch. 283, § 58 (effective July 22, 2011 ). Thus, rather than expand a common

law doctrine that the legislature has m.ade doubly obsolete, this court should

acknowledge, as we did in LB., that it is the province of the legislature, not this

court, to provide the laws and policies that control the legal relationships among

parents, children, and families. I dissent.

DISCUSSION

I. The statutory gap addressed in L.B. no longer exists

This court adopted the de facto parentage doctrine to address a very specific

statutory deficiency: the respondent in L.B. acted as a parent in every way but could

not be LB.'s legal parent because she was in a same-sex relationship with L.B.'s

biological mother. L.B., 155 Wn.2d at 684, 707-08. As we pointed out in L.B., "Our

legislature has been conspicuously silent when it comes to the rights of children like

L.B., who are born into nontraditional families, including any interests they may have

in maintaining their relationships with the members of the family unit in which they

are raised." /d. at 694. We adopted the de facto parentage doctrine to "fill the

interstices that our current legislative enactment fails to cover." /d. at 707. However,

we also acknowledged that "the legislature may eventually choose to enact differing

standards than those recognized here today, and to do so would be within its

province." /d. Thus, although we filled a void in the UPA to address a specific

shortcoming in the statutory scheme, we plainly recognized that the legislature could

revise the manner in which the parent-child relationship is formed in Washington.

2

No. 86895-6 (Wiggins, J., dissenting in part)

In 2009, the legislature did just that, filling the legislative void we addressed in

L.B. by granting state registered domestic partners all of the privileges and rights of

married spouses. The legislature had created domestic partnerships in 2007, which

it defined as relationships in which two persons share a common residence, RCW

26.60.030(1 ); are at least 18 years of age, RCW 26.60.030(2); and "both persons

are members of the same sex" or "at least one of the persons is sixty-two years of

age or older," RCW 26.60.030(6). In 2009, the legislature declared, "It is the intent of

the legislature that for all purposes under state law, state registered domestic

partners shall be treated the same as married spouses." LAWS OF 2009, ch. 521, § 1

(codified at RCW 26.60.015). This 2009 domestic partnership enactment was then

submitted to the people in Referendum Measure 71, which was placed on the ballot

and approved by voters at the November 3, 2009 general election. See WAsH. SEC'Y

OF STATE, NOVEMBER 03, 2009 GENERAL ELECTION RESULTS: REFERENDUM MEASURE

71 CONCERNING RIGHTS AND RESPONSIBILITIES OF STATE-REGISTERED DOMESTIC

PARTNERS, http://www.vote.wa.gov/results/200911 03/Referendum-Measure-71-

concerning-rights-and-responsibilities-of-state-registered-domestic-partners.html

(last visited Nov. 22, 2013).

After the adoption of the 2009 enactment granting parity between domestic

partners and married spouses, same-sex couples no longer fell into a statutory gap

with regard to parentage because if they registered as domestic partners, they were

to be treated the same as married spouses:

For the purposes of this chapter, the terms spouse, marriage,

marital, husband, wife, widow, widower, next of kin, and family shall be

interpreted as applying equally to state registered domestic

3

No. 86895-6 (Wiggins, J., dissenting in part)

partnerships or individuals in state registered domestic partnerships as

well as to marital relationships and married persons, and references to

dissolution of marriage shall apply equally to state registered domestic

partnerships that have been terminated, dissolved, or invalidated, to

the extent that such interpretation does not conflict with federal law.

Where necessary to implement this act, gender-specific terms such as

husband and wife used in any statute, rule, or other law shall be

construed to be gender neutral, and applicable to individuals in state

registered domestic partnerships.

LAWS OF 2009, ch. 521, § 5 (codified at RCW 26.26.914). Under this amendment to

the UPA, domestic partners would also be considered parents of a child born during

the domestic partnership under the provision that a man was presumed the father of

a child during his marriage to the mother. Former RCW 26.26.116(1 )(a) (2002),

amended by LAWS OF 2011, ch. 283, § 8. Thus, the gap that existed when we

decided LB.--the statutory framework governing parentage did not treat same-sex

couples the same as their married heterosexual counterparts-was filled by the

2009 enactments that placed same-sex domestic partners and married couples on

equal footing.

The question before us today is this: given that the reason for the de facto

parentage doctrine no longer exists, should we defer to the legislature and follow the

statutory scheme, or should we expand the de facto parentage doctrine to include

other relationships that were never omitted from the statutory scheme? By

needlessly enlarging the reach of the de facto parentage doctrine in this case, the

majority places its judgments above the legislature's.

It is not the role of this court to second-guess legislative enactments. State v.

Saintcalle, 178 Wn.2d 34, 66, 309 P.3d 326 (2013) (Stephens, J., concurring)

("[O]bviously it is not our role to legislate."), petition for cert. filed, No. 13-7134 (Oct.

4

No. 86895-6 (Wiggins, J., dissenting in part)

25, 2013). When the legislature defines a status or relationship-such as parentage,

marriage, or domestic partnership-it does not mean that there is .a gap for this court

to fill when a person falls outside the legislature's chosen definition. Under the

majority's logic, every time the legislature excludes a person from having a particular

legal status, this court is empowered to create a more inclusive common law

remedy. See majority at 18.

To illustrate this point, under the majority's reasoning, this court would be

entitled to tinker with very clear presumptions of parentage created by the

legislature. Under current law, a person is presumed to be the parent if the "person

and the mother or father of the child were married to each other or in a domestic

partnership with each other and the child is born within three hundred days after the

marriage or domestic partnership is terminated . . .. " RCW 26.26.116(1 )(b).

Necessarily, this statute means that a person whose marriage ended 301 days ago

would not be a presumed parent if his or her ex-spouse or domestic partner gives

birth to a child. Yet the majority's position appears to be that this court could declare

that the person divorced 301 days before a child's birth is a presumed parent,

perceiving that the legislature has not adequately considered every way that a

parent-child relationship forms. The majority would usurp the legislature's clear

policy choice.

The difficulty with the majority's position is also demonstrated by looking to

other provisions in the domestic relations title in which the legislature has similarly

sought to define or restrict a particular relationship. Taking the example of domestic

partnerships, Washington law currently allows two persons to enter into a state

5

No. 86895-6 (Wiggins, J., dissenting in part)

registered domestic partnership when several criteria are met: both persons must

share a residence, must be older than 18 years, may not be married to or in a

domestic partnership with another person, must be capable of consenting to the

domestic partnership, and must not be closer in sanguinity than second cousins.

RCW 26.60.030(1 )-(5). As noted, the statute requires that "[e]ither (a) both persons

are members of the same sex; or (b) at least one of the persons is sixty-two years of

age or older." RCW 26.60.030(6).

Such restrictions on who may qualify for domestic partnership might lead to

results perceived to be unfair or arbitrary. For example, the legislature restricts

heterosexual domestic partnerships by the age of one of the partners because

"some social security and pension laws ... make it impractical for these couples to

marry." RCW 26.60.01 0. One can easily imagine a situation that would make it

impractical 'for a 61-year-old to marry, e.g., if he or she collected benefits from a

deceased spouse. If the majority's logic in this case is extrapolated, this court would

have the power to determine that the legislature could not have intended for the 61-

year-old to lose survivor benefits and to grant a "common law" remedy to allow him

or her to enter a heterosexual domestic partnership. Though perhaps well

intentioned, the majority would rewrite the domestic partnership statute.

These examples demonstrate that the legislature has already decided that

300 days is the timeline following the termination of a marriage or domestic

partnership that a person will be presumed the parent upon the birth of a child to the

person's ex-spouse or ex-partner. The legislature has already determined that 62 is

the age at which heterosexual couples may enter domestic partnerships. The

6

No. 86895-6 (Wiggins, J., dissenting in part)

legislature makes such policy decisions every day. Although at times a one-size-fits-

all statute might appear unfair, this is the nature of the legislative branch of

government making policy choices. The majority's decision to expand the de facto

parentage doctrine overrides the legislature's chosen statutory scheme and

substitutes the majority's own policy choice.

Though we might not always agree with the legislature, we do not rewrite

statutes to insert our own policy judgments. Bain v. Metro. Mortg. Grp., Inc., 175

Wn.2d 83, 109, 285 P.3d 24 (2012) ("The legislature, not this court, is in the best

position to assess policy considerations."); Sedlacek v. Hillis, 145 Wn.2d 379, 390,

36 P.3d 1014 (2011) ("[T]he Legislature is the fundamental source for the definition

of this state's public policy and we must avoid stepping into the role of the

Legislature by actively creating the public policy of Washington."). The policy making

branches of government are better equipped to balance the competing interests

involved to create a statutory framework governing the relationships among parents

and children. Rather than circumventing the legislature's policy determinations, we

should commend the often difficult decisions regarding the dynamic realities of

Washington's domestic relations to the legislature's capable hands.

The legislature filled the gap that this court addressed in L.B. by granting

same-sex couples the same rights as married couples through domestic

partnerships. There is no more need for de facto parentage. The majority should not

extend a doctrine that has so clearly been rendered obsolete by legislative

enactment.

7

No. 86895-6 (Wiggins, J., dissenting in part)

II. The majority's confounding need to fashion common law solutions to remedy

the legislative scheme opens a rift between applicable statutes and this

court's decisional law

This case involves the UPA as it was written prior to several 2011 legislative

amendments. However, the majority insists that regardless of evolving statutory law,

this court should continue to provide a separate common law remedy for any factual

scenario that the legislature might not have contemplated. See majority at 17-18.

This overlooks the fact that the common law is the rule of decision for the courts only

"so far as it is not inconsistent with the ... laws ... of the state of Washington."

RCW 4.04.01 0. The majority's willingness to override the will of the legislature will

result in a division between statutes and case law in the area of parentage, making

our jurisprudence irreconcilable with the policies that the legislature has enacted.

Two years ago, the legislature amended the UPA significantly in a manner that

further obviates the need for the de facto parentage doctrine. As part of the 2011

amendments, the legislature declared:

The provisions [of the UPA] apply to persons in a domestic

partnership to the same extent they apply to persons in a marriage, and

apply to persons of the same sex who have children together to the

same extent they apply to persons of the opposite sex who have

children together.

LAWS OF 2011, ch. 283, § 4(2) (codified as amended at RCW 26.26.051(2)); see also

id. § 54 (expressing "intent that the act apply to persons of the same sex who have

children together to the same extent the act applies to persons of the opposite sex

who have children together.") (codified as amended at RCW 26.26.903).

More importantly, the legislature has codified the de facto parentage doctrine

by creating a presumption of parentage for any person "if, for the first two years of

8

No. 86895-6 (Wiggins, J., dissenting in part)

the child's life, the person resided in the same household with the child and openly

held out the child as his or her own." /d; § 8(2) (codified as amended at RCW

26.26.116(2)).

Furthermore, last year, the legislature passed legislation permitting same-sex

couples to marry. See LAWS OF 2012, ch. 3, § 1(1 )2 ("Marriage is a civil contract

between two persons who have each attained the age of eighteen years, and who

are otherwise capable.") (codified as amended at RCW 26.04.01 0(1 )). This reflects

additional legislative intent since the LB. decision to treat households containing

same-sex and opposite-sex couples equally.

In light of these amendments equalizing same-sex and opposite-sex couples

in all respects and codifying the de facto parentage doctrine, the legislature has

expressed its intent that chapter 26.26 RCW apply to all determinations of

parentage. 3 The legislature has set forth several circumstances under which the

parent-child relationship is formed, including giving birth to a child outside of a

2

Marriage equality for same-sex couples was subject to Referendum Measure 7 4 in the

November 6, 2012 election. The referendum was approved by Washington voters. See WASH.

SEC'Y OF STATE GENERAL ELECTION RESULTS: REFERENDUM MEASURE No. 74 CONCERNS

MARRIAGE FOR SAME-SEX COUPLES, http://www. vote.wa.gov/results/201211 06/Referendum-

Measure-No-7 4-Concerns-marriage-for-same-sex-couples.html (last visited Nov. 22, 20 13).

3 The majority makes much of the fact that the legislature amended the UPA so that it "applies to

determinations of parentage" rather than "governs every determination of parentage." Compare

LAWS OF 2011, ch. 283, § 2(1), with LAWS OF 2002, ch. 302, § 103(1); majority at 17. The

majority asserts that this amendment indicates that the legislature did not intend to alter the

judicially created de facto parentage doctrine. Majority at 17. However, our legislature was

merely following the lead of the National Conference of Commissioners on Uniform State Laws

who made this change "in response to objections that the phrase 'governs every determination

of parentage' was excessively broad and could conflict with other state laws, such as those

governing probate issues." UNIF. PARENTAGE AcT (2000) § 103 (amended 2002), 98 U.L.A. 17

cmt. (Supp. 2013). Concerns prompted by potential conflicts with probate laws hardly suggest

that the legislature intended the courts to create parallel causes of action for adjudicating

parentage claims.

9

No. 86895-6 (Wiggins, J., dissenting in part)

surrogacy agreement, RCW 26.26.101 (1 ); adoption, RCW 26.26.101 (3); a "man's

having signed an acknowledgment of paternity," RCW 26.26.101 (6); a person's

consent to assisted reproduction by his or her spouse or domestic partner, RCW

26.26.101 (7); and via a surrogate parentage contract, RCW 26.26.101 (8). In

addition, RCW 26.26.101 (5) provides that a parent-child relationship may be formed

by "[a]n unrebutted presumption of the person's parentage of the child under RCW

26.26. 116."

After the 2011 amendments, the presumption of parentage arises in two

circumstances. First, under RCW 26.26. 116(1 ), persons are presumed to be parents

of a child if they are married or in a domestic partnership at the time of the child's

birth or were married or in a domestic partnership within 300 days before the child's

birth. Second, parentage is presumed when an adult has lived with and publicly

acknowledged a child as his or her own during the first full two years of the child's

life. RCW 26.26. 116(2). These presumptions of parentage are the only presumptions

provided in the statutory scheme and may only be rebutted by an adjudication

proceeding, RCW 26.26. 116(3), in which the "parentage of a child having a

presumed ... parent ... may be disproved only by admissible results of genetic

testing excluding that person as the parent of the child or identifying another man as

the father of the child," RCW 26.26.600(1 ).

Given the legislature's provision of the very specific, enumerated ways that

the parent-child relationship is formed in our state, we must rely solely on chapter

26.26 RCW when determining whether a nonparent adult may state a parentage

claim. The majority's assertion that the legislature has not "anticipate[d] every way

10

No. 86895-6 (Wiggins, J., dissenting in part)

that a parent-child relationship forms," majority at 18, is incorrect and completely

unworkable in light of the comprehensive scheme enacted by the legislature. Going

forward, we cannot have parallel parentage schemes, one legislative and one

judicial. Rather, we must follow the law as written by the legislature.

Ill. The right to control parenting decisions is fundamental and should not easily

be waived by consent to a parent-like relationship

In addition to the fact that the legislature has remedied the problem we faced

in L.B., this court and the United States Supreme Court have recognized that the

"Due Process Clause of the Fourteenth Amendment protects the fundamental right

of parents to make decisions concerning the care, custody, and control of their

children." Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49

(2000) (plurality opinion); see also In re Parentage of C.A.M.A., 154 Wn.2d 52, 57,

109 P.3d 405 (2005) (recognizing that parents have a fundamental right to autonomy

in child-rearing that is protected as a matter of substantive due process). Indeed, the

Troxel court acknowledged that a parent's interest in caring for his or her children "is

perhaps the oldest of the fundamental liberty interests recognized by this Court." 530

U.S. at 65.

Although in L.B. we indicated that a parent's consent to formation of a parent-

like relationship adequately addressed the parent's constitutional interest in

controlling parenting decisions, 155 Wn.2d at 709, this case is a different matter. In

L.B., a same-sex couple planned to raise L.B. together and proceeded to parent L.B.

in the same household for six years following her birth. /d. at 683-84. Here, by

contrast, Laurie Holt had planned to raise B.M.H. with the child's biological father

11

No. 86895-6 (Wiggins, J., dissenting in part)

until he unexpectedly died. Although Michael and Laurie Holt married following

B.M.H.'s birth, they did not remain together for even two years of B.M.H.'s life.

These factual differences call for this court to reexamine whether and to what extent

consent to a parent-like relationship constitutes a waiver of the fundamental

parenting right. Indeed, in this case, Michael and Laurie Holt discussed the

possibility of Michael adopting B.M.H., which they ultimately decided against. The

choice of the parties not to adopt reinforces if not compels the conclusion that Laurie

Holt did not intend to give up her right to be S.M. H.'s sole parent.

We indulge every reasonable presumption against the waiver of a

fundamental right. See City of Bellevue v. Acrey, 103 Wn.2d 203, 207, 691 P.2d 957

. .

(1984). For all other tests of presumed parentage under the UPA, we require the

formality of a written document: a certificate of marriage, RCW 26.04.080, .090; a

certificate of state registered domestic partnership, RCW 26.60.040(2); or a

recorded assertion of parentage, RCW 26.26.116(1 )(d). The formality of these

documents places the world on notice that a child born during these relationships is

a child of the relationship and clearly tells the natural parent that he or she is

entering into a relationship with significant consequences for parenting the child. The

requirement of a formal document was satisfied in L.B. because the nonbiological

parent alleged that she, the biological mother, and the biological father "signed

notarized documents agreeing that [the two women] would be the parents of the

12

No. 86895-6 (Wiggins, J., dissenting in part)

child and that [the biological father] would have no involvement." L.B., 155 Wn.2d at

684 n.1. 4

By contrast to L.B. and the requirements of the UPA, there appear to be no

formal documents or agreements that would serve to place Laurie Holt on notice that

she was relinquishing exclusive control of raising her child. In circumstances such as

these, we should not easily permit parents to unknowingly relinquish their

fundamental right to control childrearing because, at some point in the past, however

briefly, they consented to and fostered a parent-like relationship of another adult with

their child. Absent clear evidence of an intent to permanently share parenting with a

nonparent, Laurie Holt has a well established constitutional right to parent her child

without interference by the state or Michael Holt.

CONCLUSION

Under the statutory scheme that applies to the case before us, the reasons

underlying our adoption of the de facto parentage doctrine have been fully resolved

by the legislature. No longer do same-sex couples who parent require an equitable

remedy to allow them to do so. Despite the legislature's comprehensive enactments

governing parentage, the majority dangerously insists that Washington have two

parentage schemes: one based in statute and one based on the instincts of a

majority of this court. But we should not expand a doctrine that has outlived its

usefulness. Instead, we must defer to the legislature, giving effect to its public policy

4

The biological mother admitted the existence of the notarized documents but claimed that she

was "unaware of their whereabouts and ha[d] no recollection of their contents." L.B., 155 Wn.2d

at 684 n.1. But we assumed the truth of the allegations of the nonbiological mother for purposes

of the decision. /d. at 684 n.2. Thus, for purposes of our opinion, the notarized agreements

among the parties were established facts.

13

No. 86895-6 (Wiggins, J., dissenting in part)

choices in the arena of familial relationships. Moreover, important constitutional

rights such as the right to parent should not simply be waived by consenting to a

nonparent's temporary parenting role; rather, waiver should be a fact-specific inquiry

that should at least require knowledge of its consequences on the parenting

relationship. Accordingly, I would reverse the Court of Appeals and remand this

matter to the trial court for dismissal of Michael Holt's de facto parentage claim.

14

No. 86895-6 (Wiggins, J., dissenting in part)

I dissent.

m

15