§6.39 Equitable Parentage

• Library: Family Law Deskbook (2025 Ed.)

C. (§6.39) Equitable Parentage

A doctrine similar to that of parentage by estoppel has reasonably been discussed by courts and commentators under the title “equitable parentage.” The Supreme Court of Wisconsin outlined considerations most commonly used in determining de facto or equitable parentage:

(1) that the biological or adoptive parent consented to, and fostered, the petitioner's formation and establishment of a parent-like relationship with the child;

(2) that the petitioner and the child lived together in the same household;

(3) that the petitioner assumed obligations of parenthood by taking significant responsibility for the child's care, education and development, including contributing towards the child's support, without expectation of financial compensation; and

(4) that the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.

In re Custody of H.S.H.-K, 533 N.W.2d 419 (Wis. 1995).

The Supreme Court of Missouri rejected the concept of “equitable parent” in Cotton v. Wise, 977 S.W.2d 263 (Mo. banc 1998). The Supreme Court found that the statutory provisions for guardianship set forth in the Probate Code are sufficient to remedy those situations that may call for an “equitable parent.” The Court noted that “[t]he legislature has provided standards under which the courts of this state may abrogate or abridge the rights and prerogatives of natural parents.” Id. at 265. It stated that the “problem with a court-fashioned ‘equitable parent’ doctrine is that the court has to improvise, as it goes along, substantive standards and procedural rules about when legal custody may be modified . . . .” Id.

In White v. White, 293 S.W.3d 1 (Mo. App. W.D. 2009), the Western District of the Missouri Court of Appeals refused to extend standing to the same-sex partner of a mother, stating that third-party standing to litigate custody or visitation under § 452.375.5, RSMo Supp. 2021, as amended by S.B. 35, 102^nd Gen. Assembly, 1^st Reg Sess. (Mo. 2023), was limited to cases where the third party was a named party to an action brought by someone else, was permitted to intervene in a pending action such as a dissolution, or already had custody other than de facto custody. The White court did reference H.S.H.K., 533 N.W.2d 419, but it declined to extend equitable parentage, also known as de facto parenting, to the same-sex partner of the child’s genetic mother, stating that she “fail[ed] to direct us to any Missouri cases recognizing or adopting the de facto or equitable parenting standard set forth by the Wisconsin court.” White, 293 S.W.3d at 15. While the White Court did not interpret Cotton, 977 S.W.2d 263, as declining to adopt the equitable parentage theory, it noted that “Cotton did not adopt the theory in a case where doing so would have permitted it to affirm the trial court’s decision without need for reversal and remand.” White, 293 S.W.3d at 15 n.8.

While the Supreme Court’s decision in In re T.Q.L, 386 S.W.3d 135 (Mo. banc 2012), did not explicitly overrule White, “Missouri courts have since interpreted T.Q.L....