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The Non-Biological Parent

By Mabry DeBuys and Laura Sell

A recent case from the appellate court in Washington demonstrates the lack of protection offered by the Uniform Parentage Act (UPA) to children raised by same-sex couples and to the non-biological parent. The court in In re the Parentage of L.B., 121 Wn. App. 460, 89 P.3d 271 (2004), cert. granted, 152 Wn.2d 1013, 101 P.3d 107 (2004), filled in the gap left by the legislature in recognizing the relationship between the non-biological parent/primary caregiver and the child by creating a common law cause of action for the psychological parent.

Sue Carvin brought an action against her former partner, Page Britain, the biological mother of L.B. under the UPA seeking to establish co-parentage of L.B. L.B. was conceived during the women's 12-year domestic relationship. Carvin argued that, in order to be constitutional, the UPA must be liberally construed to allow her claim. Alternatively, Carvin claimed status as a de facto or psychological parent under the common law of Washington. Carvin also sought visitation rights under Washington's third party visitation statute. The trial court held that Carvin had no cause of action and dismissed her petition. The appellate court agreed that the UPA did not offer Carvin a cause of action under the UPA but declined to address the constitutionality of the Act because Carvin stated a cause of action as a de facto/ psychological parent under common law.

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