A Tale of Two Judicial Philosophies: Washington Supreme Court v. Utah Supreme Court on “Psychological Parenting”
Discussions about judicial activism always seem to draw heated discussions regarding whether the concept can be precisely defined. Yet the quest for semantic precision is sometimes an unnecessary obstacle to gaining conceptual insight. Sometimes, the Way of the Optometrist is the path to clarity: by repeatedly comparing examples (“Is this one better, or is this one better?”), we find things gradually starting to come into focus.
In that spirit, I offer for your comparison the starkly different decisions of the Washington Supreme Court and the Utah Supreme Court on the subject of “de facto” or “psychological” parentage, i.e., the doctrine that a third party who is neither the biological nor the legal parent of a child may in some circumstances be deemed a legal parent of the child, over the existing legal parent’s objection, to preserve a parent-like relationship that has developed between the third party and the child.
In the case In re Parentage of L.B. (Carvin v. Britain), 122 P.3d 161 (Wa. 2005), the Washington Supreme Court was faced with a claim by a lesbian (Carvin) that she was entitled to parental rights regarding the biological child of her former female partner (Britain), despite the fact that Carvin had no biological connection to the child and had never taken steps to adopt the child during the relationship, and despite the fact that Britain had married the child’s biological father after the women broke up.
The Carvin court indicates that it will adopt the doctrine of de facto parentage in Washington with the confident opening declaration that “[t]he equitable power of the courts to adjudicate relationships between children and families is well recognized, and our legislature has evinced no intent to preclude the application of an equitable remedy in circumstances such as these.” The court notes more generally that Washington statutorily prescribes that, “in the absence of governing statutory provisions, the courts will endeavor to administer justice according to the promptings of reason and common sense, which are the cardinal principles of the common law.” This statute, the court observers, has been construed by Washington courts “to permit the adaptation of the common law to address gaps in existing statutory enactments, providing that the common law may serve to ‘fill interstices that legislative enactments do not cover.’” Surely the reader is now expecting to find after all this that the Washington legislature has only ever spoken in bits and pieces on parentage claims, and has never attempted to cover the area comprehensively, thus leaving ample judicial discretion to craft remedies as necessary, right?
Not quite. Later in the Carvin decision the Washington Supreme Court notes that in 2000 the legislature enacted the Uniform Parentage Act, which states, “[t]his chapter governs every determination of parentage in this state.” Despite this seemingly clear, recent legislative pronouncement that the UPA exhausts the field for determining parentage in Washington, the court in Carvin proceeds to conclude, based on a review of custody and visitation cases predating the UPA’s adoption (some by decades), that the legislature did not intend to preempt the judiciary’s equitable powers to craft a previously unarticulated de facto parentage test for the state of Washington. This conclusion is particularly remarkable given that the court finds support for the de facto parent concept in two Washington appellate cases from the 1980’s, of which the legislature would be presumed to have been aware when it declared in 2000 that the UPA now “governs every determination of parentage in this state.”
Apparently in Washington the word “every” no longer means “all of a class without exception,” and the burden now falls on the legislature to predict and expressly address every potential factual permutation if it intends for its legislation to preempt a subject matter area. The Washington Supreme Court in essence concluded in circular fashion that the legislature could not have meant what it said in the UPA, because that would leave Carvin with no standing to seek parental rights over the objection of the child’s biological mother. So much for separation of powers or judicial restraint. Indeed, the Washington Supreme Court makes no bones about the fact that it has just created a new class of parentage in the state:
We thus hold that henceforth in Washington, a de facto parent stands in legal parity with an otherwise legal parent, whether biological, adoptive, or otherwise. As such, recognition of a person as a child’s de facto parent necessarily “authorizes [a] court to consider an award of parental rights and responsibilities … based on its determination of the best interest of the child.” A de facto parent is 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 at the center of any such dispute.