similar to the original concept of the de facto parent, could be
judicially created and maintained to protect the rights of
psychological parents and their children.
Decisional law limiting the rights of de facto parents is, in
part, a consequence of weighing legal parents’ greater substantive
and procedural rights against the interests of de facto parents.103
However, granting a psychological parent the same rights afforded to
a de facto parent, but at the onset of a dependency case, would not
diminish the legal parents’ rights, especially if the legal parents are
absent and not involved in the court proceedings. The court must still
enforce the procedural due process protections to which even an
absent parent is entitled.104
Treating psychological parents like de facto parents at every
stage of a dependency case would better serve the interests of the
child and better inform the court of the child’s history and needs.105
103 Notably, in cases where the de facto parents raised the child for a significant
period of time, the allegations related to the removal of the child from the de facto
parents’ care, and the natural parents were significantly absent from the child’s
life, California courts have been more generous conferring due process rights. See,
e.g., In re Jamie G., 241 Cal. Rptr. at 874 (citing James v. McLinden, 341 F. Supp.
1233, 1234-35 (D. Conn. 1969)); Charles S. v. Superior Court, 214 Cal. Rptr. at
50; Katzoff v. Superior Court, 127 Cal. Rptr. at 180). Courts have been less
generous in cases where the child was removed from the de facto parent’s custody
at the onset and there was no prior, significant relationship between the de facto
parent and child. See In re P.L., 37 Cal. Rptr. 3d 6, 8-9 (Ct. App. 2005) (finding
that the de facto parent did not have rights when the de facto parent was the foster
parent with no prior relationship to child who was removed from mother’s care at
initial hearing); In re Cynthia C., 69 Cal. Rptr. 2d at 8 (holding that the de facto
parents did not have rights when the de facto parents were the caretakers for only a
few months and the child was subsequently removed from their home due to
violence and prior child abuse referrals relating to the caretakers and their own
children); In re Matthew P., 84 Cal. Rptr. 2d at 275 (finding that because the
children were removed from the parents’ custody at initial hearing and de facto
parents were foster parents in whose home the children were subsequently placed,
de facto parents had due process interests that should be considered).
104 See e.g., CAL. WELF. & INST. CODE § 294 (West 2013) (requiring due diligence
in attempt to locate and serve absent parent).
105 See generally Josh Gupta-Kagan, Children, Kin, and Court: Designing Third
Party Custody Policy to Protect Children, Third Parties, and Parents, 12 N.Y.U. J.
LEGIS. & PUB. POL’Y 43, 62 (2008) (arguing, in part, that “states should permit