Nonbio “De Facto” Mom Granted Shared Custody in Massachusetts

In a state first, a Massachusetts court has said a nonbiological de facto mother was entitled to share custody with her ex, the child’s biological mother.

Wait, some may say. What’s a de facto mother? The Movement Advancement Project helpfully tells us, “A ‘de facto parent’ is someone other than a legal parent who, for reasons other than financial compensation, formed a child-parent relationship in which he or she shared (usually at least equally) in primary childcare responsibilities.”

Here’s what makes this case a first in the state. Nonbiological mothers have been awarded joint custody before, but only if they had been married to the biological mother or had done a second-parent adoption of the child(ren). The women in this case had done neither, Massachusetts Lawyers Weekly reports, but had mutually agreed to start a family and raise the child together. After they broke up, they both agreed the nonbio mom was a de facto parent, but disagreed as to whether this gave her the right to seek custody.

Judge John D. Casey relied on a gender-neutral reading of a statute that gives a man in a relationship with a woman custody rights with respect to his nonbiological child.

Good news indeed. Marriage and adoption rights are important, to be sure, but if a same-sex couple chooses not to marry or adopt, for whatever reason, we should treat them the same as a different-sex couple in that situation.

De facto parents are still not recognized in all jurisdictions, however. Only four states (Delaware, Kansas, New Mexico, and Oklahoma) clearly say they may grant de facto parents visitation, custody, and full parenting rights. Another 25 plus D.C. grant more limited recognition; in 14 the recognition is uncertain, and in seven there is no recognition whatsoever. More work to do, my friends.

(Thanks to Susan Ryan-Vollmar of Influence Consulting for the tip about this case.)