Since December 2012, Washington has recognized same-sex marriages, whether entered here or in other states. The effect of the law was to give gay and lesbian couples the same rights as all married parties, including those enforced and protected in a divorce. However, a major exception concerned custody and visitation — known as parenting time in Washington — for a non-biological parent of the couple’s child. Unless that parent formally adopted the child, they would likely not prevail in contested parenting matters.
In 2018, Washington state adopted a law designed to protect the rights of non-biological parents, including same-sex parents and those who became parents through surrogacy. The updated Washington Uniform Parentage Act defines “de facto” parent status, which gives the holder the same rights as a biological parent. To attain such status, the non-biological parent must have:
- Resided with the child as a member of the household for a significant period of time
- Engaged in consistent caretaking of the child
- Undertaken parental responsibilities without expecting financial compensation
- Established a bonded, dependent and parental relationship with the child
- Had the relationship fostered by another parent
- Proved the relationship is in the best interest of the child
Becoming a de facto parent isn’t automatic. A court case must be filed before the child reaches age 18 and notice must be given to the child’s natural parents and legal guardians. If they oppose, a hearing may be held on any disputed facts. Usually, though, the court decides the case based on the pleadings.
Once de facto status is established, the couple follows the usual process for determining parenting time, which involves drafting and negotiating a comprehensive parenting plan and eventually submitting it to a judge for approval.
There is another scenario in which a same-sex spouse who isn’t the child’s natural mother or father and hasn’t adopted him or her may have parenting rights. Washington recognizes a presumption of a parent-child relationship in a non-biological parent if (1) the child was born of a same-sex spouse during the course of the marriage or (2) the non-biological spouse acted in a parental capacity for the first two years of the child’s life — living with the child and raising him or her as their own. This presumption exists by law without a formal court order but it is subject to potential contest in a divorce.
To fully understand a same-sex parent’s legal rights concerning Washington parenting time, it’s important to enlist a competent family law attorney as a guide. Leslie R. Bottimore of Bottimore & Associates, P.L.L.C. in Tacoma is ready to advise you. Call 253-272-5653 or contact us online to set up a consultation.