Establishing Custodial Rights for Grandparents in Connecticut

What is Akin to a Parent Child Relationship?

Many states have recognized a parent child relationship under “de facto parent,” “psychological parent,” or “in loco parentis” theories. The question of who may be deemed a psychological parent for purposes of receiving parental responsibilities has been answered differently throughout the United States.

A psychological parent under the laws of the state of Oregon has been defined within ORS 109.119 (10)(a) as:
(a) “Child-parent relationship” means a relationship that exists or did exist, in whole or in part, within the six months preceding the filing of an action under this section, and in which relationship a person having physical custody of a child or residing in the same household as the child supplied, or otherwise made available to the child, food, clothing, shelter and incidental necessaries and provided the child with necessary care, education and discipline, and which relationship continued on a day-to-day basis, through interaction, companionship, interplay and mutuality, that fulfilled the child’s psychological needs for a parent as well as the child’s physical needs. However, a relationship between a child and a person who is the nonrelated foster parent of the child is not a child-parent relationship under this section unless the relationship continued over a period exceeding 12 months.

In California, for example, a de facto parent is defined as “a person who has been found by the court to have assumed, on a day-to-day basis, the role of parent, fulfilling both the child’s physical and psychological needs for care and affection, and who has assumed that role for a substantial period.” Cal. Rules of Court, R. 1401 (8); see also C.E.W. v. D.E.W., 845 A.2d 1146, 1152 (Me. 2004) (declining to define a de facto parent, but noting “it must surely be limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life”).

In California, a de facto parent does not have custody over a dependent child or the right to make any decisions on his or her behalf. Rather, a de facto parent simply has standing to participate as a party in disposition hearings and any hearing thereafter at which the status of the dependent child is at issue. (Cal. Rules of Court, rule 5.534(e).) While any grandparent or other relative may in the court's discretion be present at a hearing and address the court (Cal. Rules of Court, rule 5.534(f)), a de facto parent has additional rights. A de facto parent may also present evidence, be represented by counsel and, in the court's discretion, be appointed counsel. (Cal. Rules of Court, rule 5.534(e).)

Factors a court considers in making its decision regarding a request for de facto parent status include: the nature of the applicant's psychological bond with the child; the applicant's adherence to the role of parent over a substantial period of time; whether the applicant possesses unique information about the child; whether the applicant has regularly attended juvenile court hearings; and whether a future proceeding may result in an order that permanently forecloses the applicant's contact with the child. In re Merrick V. (2004) 122 Cal.App.4th 235, 256.

The Alaska Supreme Court has defined a psychological parent as: “[O]ne who, on a day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills the child’s psychological needs for an adult. This adult becomes an essential focus of the child’s life, for he is not only the source of the fulfillment of the child’s physical needs, but also the source of his emotional and psychological needs . . . . The wanted child is one who is loved, valued, appreciated, and viewed as an essential person by the adult who cares for him. . . . This relationship may exist between a child and any adult; it depends not upon the category into which the adult falls – biological, adoptive, foster, or common-law – but upon the quality and mutuality of the interaction.” Evans v. McTaggart, 88 P.3d 1078, 1082 (Alaska 2004).

Similarly, in In re Clifford K., 619 S.E.2d 138 (W.Va. 2005), the West Virginia Supreme Court defined the nature of the relationship that supports a finding that the third party acted as a psychological parent. The court stated: “A “psychological parent,” who has greater protection under the law in a child custody proceeding than would ordinarily be afforded to one who is not the biological or adoptive parent of the child, is a person who, on a continuing day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfills a child’s psychological and physical needs for a parent and provides for the child’s emotional and financial support.” Id. at 157.

The State of Nebraska has defined a parent child relationship as "a person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without going through the formalities necessary to a legal adoption, and the rights, duties, and liabilities of such person are the same as those of the lawful parent . . . ." Cornhusker Christian Child Home v. DSS, 227 Neb. 94, 416 N.W.2d 551, 561 (1987) (quoting Austin v. Austin, 147 Neb. 109, 112-13, 22 N.W.2d 560, 563 (1946)).

Legal recognition of a de facto or "psychological parent" and child relationship---notwithstanding the absence of any biological ties---also finds support in a recent decision of New Jersey's highest court. In V.C. v. M.J.B., 163 N.J. 200, 748 A.2d 539 (2000), the New Jersey Supreme Court held that “the same sex partner of a biological mother who had assumed a parental role in helping to raise the biological mother's child had established a "psychological parenthood" with respect to the child and thus had a legal right to petition for custody and visitation.” See id. at 555.

The New Jersey Supreme Court applied a four-part test to determine whether a "psychological parenthood" existed between a "third party" adult and a child:
"the legal parent must consent to and foster the relationship between the third party and the child; the third party must have lived with the child; the third party must perform parental functions for the child to a significant degree; and most important, a parent-child bond must be forged." Id. at 551.

These criteria indicate that a given person's eligibility for "psychological parenthood" with respect to an unrelated child will be strictly limited to those adults who have served literally as one of the child's de facto parents.