Unequal Rights: The Fourteenth Amendment and De Facto Parentage

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Abstract: Faced with an unprecedented number of children born into non-traditional family arrangements, courts across the country are struggling to preserve relationships between same-sex partners and their partners' biological children after those non-marital relationships end. This Comment argues that the Fourteenth Amendment limits the extent to which courts can intrude on the parental rights of a natural or adoptive parent in an attempt to provide remedies for non-parent partners, who are usually legal strangers to the children under applicable statutory schemes. U.S. Supreme Court jurisprudence implicitly recognizes hierarchical tiers of parental rights. Under this framework natural and adoptive parents have superior substantive due process rights to other adults who claim familial relationships with children. Courts also have limited ability to recognize new constitutional rights. Recent decisions of the Supreme Court of Washington and other state courts around the country have recognized de facto parents as parents with rights fully equivalent to those of natural and adoptive parents. Such decisions constitute state action that necessarily erodes existing parents' protected fundamental rights under the U.S. Constitution and must be strictly scrutinized. Courts are therefore restricted in their ability to "promote" de facto parents into full legal parity with natural and adoptive parents.

That the Court has ample precedent for the creation of new constitutional rights should not lead it to repeat the process at will. The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution. - Justice Byron White.1

Throughout the United States, courts struggle with an ever more frequently recurring issue: soured same-sex relationships that lead to custody disputes over children.2 The central problem stems from the fact that in nearly all cases only one of the same-sex partners is the legal parent of a given child; often the other partner is a legal stranger to any children born or adopted during the relationship.3 Many state legislatures have amended, or state judiciaries have interpreted, their adoption statutes to allow such non-biological parents to adopt their partners' children.4 However, even in those states with liberal adoption statutes, cases in which no "second-parent" adoption took place present courts with a quandary when legal parents decide to limit or completely cut off former partners' access to their children.

Most state courts that have addressed this issue recognize the significant bond that typically develops between the child and the nonparent partner.5 Accordingly, courts have utilized several means to prevent the legal parent from unilaterally terminating the quasi-parental relationship between the former partner and child.6 Frequently, courts have looked to authority under existing third-party visitation statutes to mandate continuation of the relationship despite the objection of the legal parent.7 Recently, however, some courts have gone even further.

Representative of this trend towards expansive remedies for nonparent partners is a recent decision of the Supreme Court of Washington, In re Parentage of LB* LB. concerned an attempt by Sue Ellen Carvin to resume contact with the seven-year-old child her ex-partner Page Britain bore during the women's twelve-year relationship.9 The Supreme Court of Washington had previously held the state's third-party visitation statute facially unconstitutional.10 Thus, Carvin found the avenue most frequently used by courts in other states to give relief to non-adoptive" ex-partners closed. Instead, Carvin's petition requested characterization as some form of "parent" or, alternatively, the award of visitation rights.12 The trial court dismissed Carvin's petition for failure to state a claim on which relief could be granted, and she appealed. …


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