What are De Facto Parental Rights?

A parent stands on a beach holding the hands of their small child

In today’s society families are formed in many different ways and parental figures can be found in individuals who are not biologically or legally related to a child they are caring for. A commonly debated topic in American courts is the recognition of a de facto parent. Florida has no statute recognizing a de facto parent and only a small number of cases have been recorded mentioning this idea. However, if you have questions regarding your parental status in a child’s life, and if you may meet a de facto parenting qualification, contact a child custody attorney today.

This term of de facto parent has been generally defined as an individual who is not legally or biologically connected to the child, but has assumed the role of a parent financially, emotionally, physically, and formed a significant bond with the child. With this status, the third party may be granted certain rights in the eyes of the court. The issue of a de facto parent generally occurs in cases where a child from a previous relationship was brought into a new marriage or relationship and the third party assumed all legal care taking without a formal court order of adoption. Then, this new romantic relationship falls apart, but the third party wishes to remain in contact and have visitation rights with the child. This is where a third party may wish to claim a de facto parenting role, providing them with rights. However, under Florida law this third party lacks standing to assert a claim of parental rights. Under the United States Constitution, a great deal of reverence is given to parents when making decisions on raising their own children. Therefore, when a parent does not wish to provide the third party with any access to the child, the court is reluctant to override such wishes.

Florida courts have failed to recognize de facto parents generally. In Florida, the case most known for dissecting the idea of a de facto parenting was decided 20 years ago, in Kazmierazak v. Query, 736 So. 2d 106 (Fla. Dist. Ct. App. 1999, review denied, 760 So. 2d 947 (Fla. 2000)). The court relied heavily on the constitutional right to privacy of a parent in regards to their child rearing practices. With this right to privacy being fundamental to an individual, the idea of allowing a third party to interfere with this fundamental right would be unconstitutional. Although, the court noted, the best interest of the child may be considered in these situations, it still did not provide the third party with proper standing to even allow the court to make a ruling on the matter. Therefore, in order to overcome this issue, legislation would need to occur to provide third parties with standing rights to assert such a claim before the court.

In other states such as Maryland, the court has recognized de facto parents in certain situations and allowed them to seek custody or visitation rights with a child. In order to be seen as a de facto parent, and assert standing in a case, Maryland requires the de facto parent show: “The legal parent has consented to and fostered the relationship between the child and the de facto petitioner; the petitioner has lived with the child; the petitioner has assumed significant parental duties for the child; and the petitioner and child have formed a parent-child bond.” Such elements are similar across the states that do allow for such recognition.

Although, Florida has failed to recognize a de facto parent, speak with your attorney today to seek out other options that may be available to you.

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