Legal Recognition of De Facto Parents: Victory for Same-Sex Parents or Threat to Parental Autonomy

Abstract

The LGBT community is celebrating two recent decisions from the highest courts in Maryland and New York recognizing non-biological “de facto parents” as legal parents. Slate and other media outlets have described these decisions as “overwhelming” victories for gay parents. Commentators also see these cases as part of the “ripple effect” of recognizing of marriage equality in Obergefell v. Hodges. After years of advocating for same-sex couples on a range of issues before both legislatures and courts, I am surprised at my reluctance to join the celebration. In questioning the wisdom of this trend, I tentatively and uncomfortably align myself with pro-marriage scholars and commentators who have long critiqued the recognition of de facto parenthood. I’m not pushing marriage but I think this new trend is unnecessary to protect same-sex families or other de facto parents and their children. I also worry that authorizing this kind of state intervention to overrule decisions of legal parents may have unintended consequences that should concern us all.

Keywords: LGBT, Maryland, New York, marriage equality, Obergefell v. Hodges, de facto parents, family law, non-biological parent, child support

JEL Classification: K00, K36