Same-Sex Couples and the Concept of De Facto Parents- Illinois vs. Washington State

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“The demographic changes of the past century make it difficult to speak of an average American family. The composition of families varies greatly from household to household…”1 Troxel v. Granville, 530 U.S. 57, 64. 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).
The evolving structure of the American family-in which children frequently develop significant relationships with adults who have no traditional legal right to spend time those children- has created a friction between the well-established fundamental right of parents to raise children as they see fit and increased role that non-parents are playing in the lives of those children. Today, a diversity of perspectives on morality and individual freedoms has produced a spectrum of views on what constitutes a family.1Families whose heads of household are gay or lesbian are just one part of that spectrum. Between one and nine million children in the United States are estimated to have at least one gay or lesbian parent.2
Demographic changes in the American nuclear family have led to legislation granting child visitation rights to non-parents who share the sort of “parent-like” relationship with a child that a biological parent typically enjoys. Today, non-biological parent caregivers such as grandparents, stepparents, and same sex partners are playing critical roles in the upbringing of children across the country. Two recent cases involving the parental rights of non-biological same sex parents, one in the Illinois Appellate Court ( In re Marriage of Simmons 355 Ill. App. 3d 942; 825 N.E.2d 303 (1st Dist. 2005)) and one in the Washington State Supreme Court ( In re Parentage of L.B. , 155 Wn.2d 679 (Wash. 2005)) demonstrate two different methods of interpreting the concept of de facto parents.
The Washington Supreme Court takes an expansive view of De Facto parents.
Recently, the Washington Supreme Court examined the issue of third-party visitation, holding that a former same-sex partner, who was neither a biological nor adoptive parent of the child, had standing under Washington law to petition the courts for a determination of coparentage with regard to the child. It noted that in the common law, the courts the equitable power to adjudicate relationships between children and families. It also observed that the Washington Legislature had evinced no intent to preclude the application of an equitable remedy in circumstances such as these. The Court held that Washington’s common law recognized the status of de facto parents and granted them standing to petition for a determination of the rights and responsibilities that accompanied legal parentage in the state. The former same-sex partner In re Parentage of L.B. , was given the opportunity to present evidence to the trial court sufficient to establish her status as a de facto parent of the child and if successful to obtain the rights and responsibilities attendant to parentage.
The facts of In re Parentage of L.B. are as follows, In 1989, after dating for several months, Page Britain and Sue Ellen Carvin began living together as intimates. Five years later, they decided to add a child to their relationship and together artificially inseminated Britain with semen donated by a male friend. On May 10, 1995, Britain gave birth to a baby girl, L.B., and the partners began actively coparenting her, both taking a committed, active, and loving role in her nurturing and upbringing. Then, when L.B. was six years old, Britain and Carvin ended their relationship and an acrimonious spate of litigation over access to L.B. ensued.
The Washington Court held that “a de facto parent stands in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise. Id. at 708. The criteria for determining the existence of a de facto parent was set forth by the Wisconsin Supreme Court as follows:
(1) the natural or legal parent consented to and fostered the parent-like relationship,
(2) the petitioner and the child lived together in the same household,
(3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and
(4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.

These standards were used because, under careful consideration, they are proven to be strong indicators of those adults who “have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.” C.E.W., 845 A.2d at 1152. The Supreme Court of Washington identified that third-party visitation was an area of the law in which the intentions of the legislature were not adequately defined to encompass those individuals which they intended to include.
Illinois Courts and a narrower concept of De Facto parents
The recent Illinois case, In re Marriage of Simmons, took a more restrictive view of the concept of defacto parents, and denied parental rights to a same sex partner. In Simmons the father, who had begun the process of a sex change to a male, had obtained a new birth certificate designating him as a male, but the physician who supplied the affidavit on the basis of which that occurred explained at trial that the father had, in fact, never completed the round of surgeries required for a true sex change, and that he had supplied an affidavit to “help out” an unhappy patient who was in danger of harm from testosterone overdoses. Since same-sex marriages are invalid under 750 Ill. Comp. Stat. Ann. 5/201 (2002) and the impediment of being female was never removed, the father could not claim status as a husband. This inability to prove status as either a “man” or a “husband” likewise deprived him of standing under either the Illinois Parentage Act, 750 Ill. Comp. Stat. Ann. 40/1 et seq. (2002), or the Parentage Act of 1984, 750 Ill. Comp. Stat. Ann. 45/1 et seq. (2002), in order to seek a judgment of paternity that might have enabled him to further seek custody.
The facts of this rather complicated case area as follows. Petitioner was born a female on March 31, 1959, and given the name of Bessie Cornelia Lewis. At a very young age, he began experiencing a great discomfort with his female anatomy and became convinced that he was actually a boy who had been born into the body of a girl. This condition is commonly referred to in the psychiatric field as gender dysphoria or gender identity disorder. A person suffering from gender dysphoria is uncomfortable with his assigned or genetic sex and has a preoccupation with ridding himself of the physical characteristics of that assigned or genetic sex. To that end, petitioner began taking testosterone, the male hormone, to alter his appearance and started going by the name of Robert Sterling  Simmons. He has been taking testosterone since he was 21 years old, and as a result thereof he now has the outward appearance of a man, which includes facial and body hair, male pattern baldness, a deep voice, a hypertrophied clitoris, and increased muscle and body mass.
Petitioner and respondent participated in a wedding ceremony on August 10, 1985, and a certificate of marriage was issued by the county clerk of Cook County on August 29, 1985. In 1991, they decided to have a child, and it was agreed that respondent would undergo artificial insemination. As a result of that procedure, respondent gave birth to the minor child on July 20, 1992, and petitioner is listed as the father on the child’s birth certificate.
On July 31, 1991, petitioner underwent a total abdominal hysterectomy and a bilateral salpingo oophorectomy, which removed his uterus, fallopian tubes and ovaries. However, he still to this day retains all of his external female genitalia, which includes a vagina, labia, a hypertrophied clitoris, and breasts.
The relationship between the parties was quite tumultuous and began to deteriorate throughout the years. On August 24, 1998, petitioner filed a petition for dissolution of marriage in which he sought, inter alia, temporary and permanent sole care and custody of the minor child. In her answer, respondent alleged that petitioner lacked standing to assert custody rights over the minor child because their same-sex marriage was invalid under Illinois law, and he was neither the biological nor adoptive parent. A trial was conducted on the petition and the minor child was represented throughout the proceedings by a guardian ad litem and the office of the Public Guardian. At the conclusion of the trial, the court denied the petition for dissolution of marriage on the grounds that there was no marriage to dissolve since it was void ab initio as a same-sex marriage. The court also awarded sole custody of the minor child to respondent and declared that petitioner lacked parental rights or standing to seek custody. However, the court did grant petitioner visitation rights, which it is interesting to note were not contested by the other parent on appeal.
Among other legal arguments made by the Petitioner in this case, Petitioner also contended that he should be declared the de facto parent based upon his long, loving and close relationship with the minor child who has always known him as his “Daddy.” The Simmons Court relied on an earlier appellate court case to deny the petitioner parental rights
In re Visitation With C.B.L. , 309 Ill. App. 3d 888, 723 N.E.2d 316, 243 Ill. Dec. 284 (1999), the petitioner, who had engaged in a long-term lesbian relationship with respondent, who had given birth to the minor as a result of artificial insemination, sought an order granting her visitation with the minor child pursuant to the Marriage Act. On appeal, she abandoned her contention that the allegations within her petition were sufficient to establish her standing under the Marriage Act and contended only that they were sufficient to provide her standing as a common law de facto parent or as an individual in loco parentis to the child. C.B.L. , 309 Ill. App. 3d at 890. The C.B.L. court held that the Marriage Act superseded and supplanted the common law of visitation in Illinois and that, therefore, any standing for visitation must be found solely within that Act. C.B.L. , 309 Ill. App. 3d at 891. Since petitioner conceded her lack of standing under the Act, her petition lacked merit. C.B.L. , 309 Ill. App. 3d at 894.
The court in C.B.L. further stated:

“Finally, this court is not unmindful of the fact that our evolving social structures have created nontraditional relationships. This court, however, has no authority to ignore the manifest intent of out General Assembly. Who shall have standing to petition for visitation with a minor is an issue of complex social significance. Such an issue demands a comprehensive legislative solution. That solution is provided, by our General Assembly, within [the Marriage Act].” C.B.L., 309 Ill. App. 3d at 894-95.

Using the C.B.L. case as a guide, the Simmons Court ruled that the petitioner’s standing to seek full care and custody of the minor child must be found solely within the Marriage Act, the Parentage Act, or the Parentage Act of 1984. Our determination that he lacks such standing under those acts is dispositive of the issue.
Historically, courts and legislatures have shown a preference towards the desires of natural parents over that of third party claims, unless it can be proven that the natural parent is unfit and it would not be in the best interest of the child to rule against the third-party. Although the United States Supreme Court’s holding in Troxel may have taken a substantial step in protecting a natural parent’s fundamental rights, it is also well established that “parental rights are not absolute, but are subordinate to the State’s parens patriae power, and must yield to the welfare of the child, particularly in the context of divorce and custody litigation.” In many instances, a stepparent, grandparent, or same-sex partner will step in and fulfill the role of an absent parent, influencing the development of that child in the same respect as the missing biological parent would have had they continued to parent. The Supreme Court of Washington identified this type of relationship as a de facto parent and took a liberal step, holding that those third-parties “who qualify are not entitled to any parental privileges, as a matter of right, but only as is determined to be in the best interests of the child.” In the Matter of the Parentage of L.B., 155 Wn. 2d 679, 708-09, 122 P.3d 161. The Washington Supreme Court went on to state that recognition of a person as a de facto parent is “limited to those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life.” Id. at 708.
By contrast Illinois has taken a much narrower view of the rights of non-biological parents. It remains to be seen if in the future, the Illinois Courts will issue opinions that more accurately reflect the changing demographics of the traditional American Family.

1 William C. Duncan, Don’t Ever Take a Fence Down: The “Functional” Definition of Family-Displacing Marriage in Family Law, 3 J.L. & Fam. Stud. 57, 66 (2001).

2 Committee on Psychosocial Aspects of Child and Family Health, Am. Acad. of Pediatrics, Coparent or Second-Parent Adoption by Same-Sex Parents (vol. 109, number 3, 2002).