Three's a Crowd: Addressing Discrimination Faced by Queer De Facto Parents in Child Custody Standing Proceedings

In the United States, between five percent and eight percent of adults identify as queer, and as of 2020, fifteen percent of queer couples have children in their households. While recent legal victories have expanded queer rights, family law continues to lag in affording legal recognition to “nontraditional” families. This is particularly problematic for unmarried, queer co-parents who have virtually no legal claims to the children they have raised with their partners. Current standing requirements for custody proceedings treat these de facto parents as legal strangers to their children due to the absence of biological, marital, or adoptive ties. As a result, they face an uphill battle in seeking even visitation rights. In cases where the parental rights of the other biological parent were never formally terminated, the de facto parent is completely precluded from attempting to establish standing from the outset. States are split on the issue of queer de facto parenthood; there is no consistent application of the doctrine in the jurisdictions that recognize it, and several decline to acknowledge it at all. This has created a confusing patchwork of rights, and the inconsistency and uncertainty has disproportionately harmed queer families. This Note argues that, because the discriminatory effect occurs at the standing stage of custody trials, the Fourteenth Amendment’s Due Process Clause can be leveraged to create a burden-shifting standard to put queer de facto parenthood on equal footing with other traditionally recognized modes of parentage. Implementing this standard will afford queer co-parents the opportunity to enforce their rights, thereby safeguarding their children from loss of significant familial relationships.