Jones v. Barlow

1 Because biological and adoptive parents enjoy identical
rights under the law, our use of the term “legal parent”
throughout this opinion refers equally to both classes of
parents.
2007 UT 20
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Keri Lynne Jones, 	Nos. 20040932
Plaintiff and Appellee, 	20041031
v.
F I L E D
Cheryl Pike Barlow,
Defendant and Appellant. 	February 16, 2007
---
Third District, Salt Lake
The Honorable Timothy R. Hanson
No. 034907803
Attorneys: 	Kathryn D. Kendell, San Francisco, CA, and Lauren R.
Barros, Salt Lake City, for plaintiff
Frank D. Mylar, Midvale, for defendant
---
On Certification from the Utah Court of Appeals
PARRISH, Justice:
INTRODUCTION
¶1 	Defendant Cheryl Barlow asks this court to overturn the
district court’s order granting Barlow’s former domestic partner,
Keri Jones, visitation of Barlow’s daughter. 	Because Jones has
no biological or legal relationship with the child, she has no
statutory standing to seek visitation. 	The district court,
however, granted standing under the common law doctrine of in
loco parentis. 	We must now decide whether Utah courts have
recognized, or should adopt, a common law doctrine granting
standing for domestic partners of fit legal parents 1 to seek
visitation of children for whom they had acted as parents.

Nos. 20040932, 20041031 	2
¶2 	We hold that the doctrine of in loco parentis, as
recognized by the courts of this state, does not independently
grant standing to seek visitation after the in loco parentis
relationship has ended. 	Although this court recognized the right
of stepparents to seek visitation in Gribble v. Gribble, 583 P.2d
64 (Utah 1978), standing in that case arose out of an
interpretation of statutory law granting such rights, not from an
independent common law source. 	We decline to extend the common
law doctrine of in loco parentis to create standing where it does
not arise out of statute. 	We accordingly overturn the trial
court’s grant of visitation rights and hold that the common law
doctrine of in loco parentis does not independently grant
standing to seek visitation against the wishes of a fit legal
parent.
BACKGROUND
¶3 	Cheryl Pike Barlow and Keri Lynne Jones began a
romantic relationship, and in time, they moved in together. 	They
ultimately traveled to Vermont, where they entered into a civil
union.
¶4 	In November 2000, around the time they made their
decision to enter into a civil union, Barlow and Jones decided to
have a child together. 	They planned that Barlow would be
artificially inseminated and bear the child and that Jones would
be artificially inseminated and bear a second child at a later
date. 	Jones and Barlow selected a sperm donor who shared both of
their characteristics and began the artificial insemination
process. 	Barlow conceived in February 2001. 	During the
pregnancy, Jones participated in prenatal care with Barlow and
her physician.
¶5 	On October 4, 2001, Barlow gave birth to a baby girl
(the “child”). 	The birth certificate listed the child’s surname
as “Jones Barlow.” 	For the first two years of her life, both
Barlow and Jones cared for the child. 	And in May 2002, the
parties obtained an order from the Third District Court
designating Jones and Barlow as co-guardians of the child.
¶6 	Jones and Barlow ended their relationship around
October 2003, soon after the child’s second birthday.
Subsequently, Barlow and the child moved to a separate residence,
and Barlow eventually ended all contact between Jones and the
child. 	Barlow also petitioned the district court for an order
removing Jones as the child’s co-guardian. 	Jones objected, but
the district court granted the petition.

2 We note that the docket number for this case, 20040932,
was originally assigned to a string of interlocutory appeals
filed with the Utah Court of Appeals before the entry of final
judgment by the district court. 	A second docket number,
20041031, was assigned after Barlow filed a direct appeal from
the final judgment. 	On December 17, 2004, the court of appeals
certified this consolidated case number to the Utah Supreme
Court. 	Although this case number was originally assigned to the
interlocutory appeals, we decide this case as an appeal from a
final judgment and deem all unresolved interlocutory appeals moot
under this decision.
3 	Nos. 20040932, 20041031
¶7 	In December 2003, Jones brought suit in district court
seeking a “[d]ecree of custody and visitation,” claiming that she
had standing under the common law doctrine of in loco parentis.
The district court found that the doctrine of in loco parentis
could confer standing and ordered that the proceedings be
bifurcated. 	First, the parties would participate in an
evidentiary hearing to assess whether Jones stood in loco
parentis to the child. 	If the court found that Jones established
the elements of in loco parentis, then the court would proceed
with a best interests of the child analysis to determine
visitation and custody.
¶8 	At the conclusion of the first phase of trial, the
district court held that Jones was in loco parentis to the child
and thus had standing to argue that visitation was in the child’s
best interest. 	The district court limited the second phase of
the trial to issues of visitation and child support after finding
that Utah’s adoption statutes precluded a consideration of
custody. 	Following the conclusion of the second phase of trial,
the district court found that continued contact with Jones would
be in the child’s best interest and ordered visitation. 	In
addition, the court ordered Jones to provide financial support to
the child.
¶9 	Barlow appeals the district court’s decision. 2 	She
presents five arguments: 	(1) the trial court lacks jurisdiction
in this case because the in loco parentis doctrine does not grant
Jones standing to seek visitation; (2) the trial court’s
application of the in loco parentis doctrine violates Barlow’s
constitutional rights; (3) the visitation order violates Barlow’s
right to privacy; (4) Jones was never truly in loco parentis to
the child; and (5) Jones’ claims are barred by res judicata.
Because we hold that Jones lacks standing, we reverse the trial
court’s order and decline to reach the merits of the remaining
arguments.

Nos. 20040932, 20041031 	4
STANDARD OF REVIEW
¶10 	In reviewing questions of common law standing, this
court recognizes three possible standards of review.
Determinations of the legal requirements for standing are
reviewed for correctness. 	Wash. County Water Conservancy Dist.
v. Morgan, 2003 UT 58, ¶ 18, 82 P.3d 1125. 	However, we give
deference to the district court on factual determinations that
bear upon the question of standing. 	Id. (citing Kearns-Tribune
Corp. v. Wilkinson, 946 P.2d 372, 373 (Utah 1997)). 	Finally, we
give minimal discretion to the district court in its application
of the facts to the law. 	Id.
¶11 	Because we confine our review to the district court’s
interpretation of the doctrine of in loco parentis and do not
address its findings of fact or application of those facts to the
law, the appropriate standard of review is correctness. 	We
therefore grant no discretion to the district court.
ANALYSIS
¶12 	“[S]tanding is a jurisdictional requirement that must
be satisfied” before a court may entertain a controversy between
two parties. 	Wash. County Water Conservancy Dist. v. Morgan,
2003 UT 58, ¶ 6 n.2, 82 P.3d 1125; accord Harris v. Springville
City, 712 P.2d 188, 190 (Utah 1986) (“[L]ack of standing is
jurisdictional.”); Jenkins v. Swan, 675 P.2d 1145, 1148 (Utah
1983) (“[T]he moving party must have standing to invoke the
jurisdiction of the court.”). 	Under the traditional test for
standing, “the interests of the parties must be adverse” and “the
parties seeking relief must have a legally protectible interest
in the controversy.” 	Jenkins, 675 P.2d at 1148. 	A party may
assert an interest that is legally protectible under either
statute or the common law. 	See Morgan, 2003 UT 58, ¶ 17.
Recognizing that no Utah statute confers a right to seek
visitation of the child, Jones bases her claim of a legally
protectible right on the common law doctrine of in loco parentis.
¶13 	The doctrine of in loco parentis is applied when
someone who is not a legal parent nevertheless assumes the role
of a parent in a child’s life. 	Gribble v. Gribble, 583 P.2d 64,
66 (Utah 1978) (“The term ‘in loco parentis’ means in the place
of a parent . . . .”); Black’s Law Dictionary 803 (8th ed. 2004)
(“Of, relating to, or acting as a temporary guardian or caretaker
of a child, taking on all or some of the responsibilities of a
parent.”). 	An individual attains in loco parentis status by
assuming the “status and obligations of a parent without formal

5 	Nos. 20040932, 20041031
adoption.” 	Gribble, 583 P.2d at 66; accord Rockwood v. Rockwood,
236 P. 457, 459 (Utah 1925). 	While an individual stands in loco
parentis to a child, he or she has the “same rights, duties, and
liabilities as a parent.” 	Sparks v. Hinckley, 5 P.2d 570, 571
(Utah 1931); accord Gribble, 583 P.2d at 66; McDonald v. Texas
Employers’ Ins. Ass’n, 267 S.W. 1074, 1076 (Tex. App. 1924) (“All
such are said to stand in loco parentis, and, as long as the
relation exists, the rights and duties with reference to the
child are the same as those of the natural parent.”).
¶14 	The central question now presented to us is whether the
in loco parentis doctrine contemplates perpetuating these parent-
like rights and obligations after a legal parent has ended the in
loco parentis relationship. 	Because at common law all rights and
obligations end with the termination of the in loco parentis
relationship, and because the doctrine in no way abrogates a
parent’s right to terminate such a relationship, we conclude that
Jones lacks standing to seek visitation. 	And we decline to
expand the in loco parentis doctrine to permanently diminish
parental rights.
I. 	THE IN LOCO PARENTIS DOCTRINE DOES NOT CONFER STANDING TO
SEEK VISITATION AFTER THE PARENT-LIKE RELATIONSHIP HAS ENDED
¶15 	Unlike the relationship arising from adoption, the in
loco parentis relationship is temporary in nature. 	59 Am. Jur.
2d Parent and Child § 9 (2002); Babb v. Matlock, 9 S.W.3d 508,
510 (Ark. 2000). 	In Rockwood v. Rockwood, 236 P. 457 (Utah
1925), we endorsed the common law principle that where an
individual enters into an in loco parentis relationship with a
child, “the reciprocal rights, duties, and obligations of parent
and child continue as long as such relation continues.” 	Id. at
459; accord 59 Am. Jur. 2d Parent and Child § 9 (2002) (“Once the
person alleged to be in loco parentis no longer discharges all
the duties incident to the parental relationship, the person is
no longer in loco parentis.”). 	Thus, the termination of the in
loco parentis relationship also terminates the corresponding
parent-like rights and responsibilities. 	59 Am. Jur. 2d Parent
and Child § 9 (2002); State v. Randall S. (In re Interest of
Destiny S.), 639 N.W.2d 400, 406 (Neb. 2002).
¶16 	Because it is clear that Barlow effectively ended the
in loco parentis relationship when she moved to another residence
and refused to allow Jones to interact with the child, the only
question that remains is whether such an act by a legal parent
qualifies as a valid termination of an in loco parentis
relationship under the common law. 	Stated differently, the
question is whether a legal parent may terminate the in loco

Nos. 20040932, 20041031 	6
parentis status by removing the child from the relationship with
the surrogate parent or whether the in loco parentis doctrine
allows the surrogate parent to extend the relationship against
the legal parent’s will.
¶17 	Before addressing the question of how an in loco
parentis relationship may be terminated, we first correct a
misstatement this court has made as to the status of the common
law on this issue. 	It is universally recognized that, “[u]nlike
natural and adoptive parenthood, the status of being in loco
parentis is temporary; it may be abrogated at will either by the
surrogate parent or by the child.” 	59 Am. Jur. 2d Parent and
Child § 9 (2002) (emphasis added). 	In Gribble v. Gribble, 583
P.2d 64 (Utah 1978), we misconstrued this principle when we
asserted that “[t]he common law concerning termination of the
[in] loco parentis status is that only the surrogate parent or
the child is able to terminate the status at will.” 	Id. at 67
(emphasis added). 	This assertion that the common law recognized
disavowal by either the surrogate parent or the child as the
exclusive method of dissolving an in loco parentis relationship
was incorrect.
¶18 	When we review the authorities cited by this court in
Gribble, we find no support for the proposition that only the
surrogate parent or the child may terminate the in loco parentis
relationship. 	In support of that proposition, the Gribble court,
583 P.2d at 67 n.13, cited two cases: 	the Washington Supreme
Court decision of Taylor v. Taylor, 364 P.2d 444 (Wash. 1961),
and the South Carolina decision of Chestnut v. Chestnut, 147
S.E.2d 269 (S.C. 1966). 	Both of these cases involved attempts by
men who stood in loco parentis to a child to avoid child support
upon divorce or separation from their wives. 	Taylor, 364 P.2d at
444-46; Chestnut, 147 S.E.2d at 270. 	In declaring that these men
could avoid a support obligation, both courts directly quoted the
following statement from the Iowa Supreme Court as representing
the accepted common law:
One important qualification is that one
merely standing in the place of a parent may
abandon the burdens attendant upon such
status at any time. 	In McDonald v. Texas
Employers’ Insurance Association it is said:
“. . . the status of one in loco parentis is
temporary, and may be abrogated at will by
either the person thus standing in loco
parentis or by the child.” 	To the same
effect is this language from In re McCardle’s
Estate: 	“It (loco parentis) is not, as

7 	Nos. 20040932, 20041031
argued, to be likened to that of adoption.
The one is temporary in character, the other
permanent and abiding.”
State ex rel. Gilman v. Bacon, 91 N.W.2d 395, 399 (Iowa 1958)
(citations omitted), quoted in Taylor, 364 P.2d at 445-46;
Chestnut, 147 S.E.2d at 270.
¶19 	That the surrogate parent is in no way bound by the
obligations of the in loco parentis relationship does not support
the somewhat contrary conclusion that the doctrine entitles the
surrogate parent to unilaterally extend the rights pertaining to
such a relationship. 	In fact, there is nothing in the
authorities we cited in Gribble justifying the conclusion that
the in loco parentis status may be terminated by only the
surrogate parent or the child.
¶20 	Our research has failed to uncover a single instance
where a court has endorsed the proposition that the inherent
power of the surrogate parent or the child to terminate the
relationship is exclusive in nature. 	Quite the opposite, cases
recognizing that the relationship may be abrogated at will by
either party emphasize the transitory nature of the relationship,
rather than the Gribble formulation of a relationship that is
essentially permanent at the option of the surrogate parent. 	See
Harmon v. Dep’t of Soc. & Health Servs., 951 P.2d 770, 775 (Wash.
1998) (“At common law the status of one standing in loco parentis
is voluntary and temporary and may be abrogated at will by either
the person standing in loco parentis or . . . the child.”); In re
Agnes P., 800 P.2d 202, 205 (N.M. Ct. App. 1990) (“Furthermore,
an in loco parentis status is temporary and may be abrogated at
will by either the child or the surrogate parent.”); McDonald v.
Texas Employers’ Ins. Ass’n, 267 S.W. 1074, 1076 (Tex. App. 1924)
(“[T]he relation existing between an adopting parent and the
child is permanent, continuing, and cannot be abrogated by the
parent; whilst the status of one in loco parentis is temporary,
and may be abrogated at will by either the person thus standing
in loco parentis or by the child.”). 	In fact, a New Mexico
appellate court that cited this proposition found that nothing
within the in loco parentis doctrine prohibited the state from
terminating the relationship against the objection of the
surrogate parents. 	Agnes P., 800 P.2d at 205. 	The court held
that the surrogate parents were not entitled to termination
hearings because they did not have the same due process rights as
legal parents. 	Id.
¶21 	In short, the fact that the in loco parentis status
could be terminated by the surrogate parent or by the child does

3 The Washington Supreme Court has recognized that the in
loco parentis doctrine is temporary in nature and does not extend
permanent rights akin to those held by actual parents. 	L.B., 122
P.3d at 168 n.7; Luby v. DaSilva (In re Custody of Brown), 105
P.3d 991, 994 (Wash. 2005) (“[N]o Washington case recognizes that
nonparents are guaranteed the fundamental rights of parents under
the doctrine of in loco parentis.”). 	However, the court has
chosen to “adapt [their] common law” to recognize a “de facto
parent” doctrine which does confer rights equal to that of a
legal parent. 	L.B., 122 P.3d at 176-77.
Nos. 20040932, 20041031 	8
not suggest any limitation or restriction on the rights of a fit
legal parent to terminate a surrogate parent’s relationship with
his or her child. 	We thus conclude that our statement in Gribble
regarding termination of the in loco parentis status, insofar as
it restricted the authority to terminate the relationship to
either the surrogate parent or the child, was incorrect as a
statement of the historical common law rule.
¶22 	Indeed, there is no principle within the in loco
parentis doctrine that purports to abridge a fit legal parent’s
right to govern her children’s associations. 	The in loco
parentis status is “temporary by definition and ceases on
withdrawal of consent by the legal parent.” 	Carvin v. Britain
(In re Parentage of L.B.), 122 P.3d 161, 168 n.7 (Wash. 2005). 3
In other words, a legal parent may freely terminate the in loco
parentis status by removing her child from the relationship,
thereby extinguishing all parent-like rights and responsibilities
vested in the former surrogate parent.
¶23 	Other courts have recognized that the temporary nature
of the in loco parentis status militates against using the
doctrine to grant continual parent-like rights after the legal
parent has terminated the in loco parentis relationship. 	When
confronted with a situation where a former partner asserted in
loco parentis standing to seek visitation of a child after the
natural parent unilaterally removed the child from the
relationship, the Texas Court of Appeals found that
[o]nce [the biological parent] and the child
moved out, however, any possible claim [the
surrogate parent] may have had for standing
in loco parentis ended. 	The common law
relationship is temporary and ends when the
child is no longer under the care of the
person in loco parentis.

4 Although hypothetically the surrogate parent would be
burdened by parental responsibilities for as long as he or she
chose to extend parental rights, this does not change the fact
that the power of choice remains entirely the prerogative of the
surrogate parent. 	The legal parent would have no right to
exclude the surrogate parent from the child’s life, while neither
the legal parent nor the child would have the right to enforce a
support obligation once the surrogate parent has opted to cast
the relationship aside.
9 	Nos. 20040932, 20041031
Coons-Andersen v. Andersen, 104 S.W.3d 630, 635-36 (Tex. App.
2003). 	Indeed, the Texas court described “the very cornerstone
of the doctrine” of in loco parentis as the “central common
feature [that] the person deemed to be standing in loco parentis
had actual care and custody of a child in a parent’s absence.”
Id. at 636. 	Thus, the assignment of permanent rights is
repugnant to one of the defining features of the in loco parentis
doctrine--its temporary status.
¶24 	This temporary status is reinforced by the fact that
the surrogate parent may arbitrarily cast the relationship aside
at any time and thus terminate all parent-like obligations and
rights. 	67A C.J.S. Parent and Child § 348 (2002); Taylor v.
Taylor, 364 P.2d 444, 445 (Wash. 1961). 	It would be a perverse
doctrine of law that left a legal parent unable to enforce
support obligations against a surrogate parent’s will because of
the temporary status of the in loco parentis relationship but
allowed a surrogate parent to extend her parent-like rights
against the legal parent’s objections for as long as she saw fit.
Under such a distorted legal regime, the parent-like rights and
responsibilities are permanent and abiding for as long as the
surrogate parent wants them to be, yet transitory and fleeting
when the legal parent seeks to enforce a parental obligation
against the surrogate parent. 4 	Such an inequitable result, which
would prioritize the rights of the surrogate parent over the
needs of the child, demonstrates that the in loco parentis
doctrine does not contemplate a perpetual grant of rights and is,
in fact, ill-suited to convey such rights.
¶25 	Despite the common law principle that the in loco
parentis doctrine is temporary and does not convey rights that
survive the termination of the parent-like relationship, Jones
asserts that Utah cases have conferred standing to seek
visitation upon those who had stood in loco parentis to a child.
A close examination of these cases, however, reveals that this
court has never granted standing to seek visitation solely on the
basis of this common law doctrine.

5 We make no determination whether the Gribble
interpretation of the prior version of Utah Code section 30-3-5
applies to the slightly modified wording contained in the current
version of the code. 	See Utah Code Ann. § 30-3-5(5)(a) (Supp.
2006).
Nos. 20040932, 20041031 	10
¶26 	In Gribble, 583 P.2d at 66, this court based a
stepparent’s standing to seek visitation upon an interpretation
of a Utah divorce statute, which states in part that
“[v]isitation rights of parents, grandparents and other relatives
shall take into consideration the welfare of the child.” 	Utah
Code Ann. § 30-3-5 (1953) (current version at Utah Code Ann.
§ 30-3-5(5)(a) (Supp. 2006)). 	We read this phrase to “indicate[]
the legislative intent to protect the relationships which affect
the child whose parents are being divorced” and reasoned that an
individual who “stand[s] in the relationship of parent,
grandparent, or other relative” had standing under the statute to
seek visitation. 	Gribble, 583 P.2d at 66. 	Although we used the
in loco parentis doctrine as an interpretive tool to guide the
inquiry as to who stands in one of these relationships, the
ultimate source of standing was the statute itself--not the
common law doctrine of in loco parentis. 5 	Id. at 68 (“If
appellant is in loco parentis, he should be considered a parent
for purposes of Sec. 30-3-5.”); State ex rel. J.W.F., 799 P.2d
710, 715 n.5 (Utah 1990) (finding that the court in Gribble “was
interpreting Utah Code Ann. § 30-3-5 (1953)”). 	In this case,
however, Jones does not rely upon any interpretation of statutory
law. 	Rather, she relies solely upon the common law for standing.
We therefore conclude that Gribble is inapplicable.
¶27 	Equally unavailing to Jones is our holding in J.W.F.,
799 P.2d 710. 	In that case, a wife left her husband and
subsequently bore a child fathered by another man. 	Id. at 712.
Soon after, both the natural father and mother abandoned the
child, and the state of Utah eventually terminated their parental
rights. 	Id. 	Although the husband was still technically married
to the wife, he did not learn of the child’s existence until the
child was nine months old. 	Id. 	Upon learning that he had a
stepson, the husband petitioned for custody. 	Id. 	In conferring
standing to the stepfather to seek custody, this court relied
upon two rationales. 	First, we reasoned that this court had
granted to stepparents standing to be heard on matters of
custody. 	Id. at 716. 	Second, because the Utah legislature had
imposed a support obligation upon stepparents for the duration of
the marriage to the legal parent, we reasoned that this support
obligation was sufficient to confer standing. 	Id. 	Neither
rationale applies to Jones.

6 We do not have before us, and we do not decide, whether a
person who is or once stood in loco parentis to a child has
standing to seek visitation or custody in the absence of a fit
legal parent.
11 	Nos. 20040932, 20041031
¶28 	We explicitly did not rely upon the in loco parentis
doctrine in J.W.F. because no such relationship existed in that
case. 	Id. at 715 n.5. 	In a footnote, however, we opined that
perhaps other types of relationships could give rise to standing:
“[I]t is conceivable that persons who are not related by blood or
marriage, although not presumptively entitled to standing, could
show that they had a relationship with the child that would
warrant a grant of standing. 	We have no such situation before us
today.” 	Id. at 715 n.4. 	As confessed dicta, this musing on the
potential outcome of a hypothetical situation is not binding upon
this court. 	And perhaps this court would have been less inclined
to entertain the notion of throwing open the gate to
participation in a child’s life if a fit legal parent had been
involved, as in the present case. 6
¶29 	In summary, traditional common law principles counsel
that the in loco parentis status is of temporary duration and may
be terminated “[o]nce the person alleged to be in loco parentis
no longer discharges all duties incident to the parental
relationship.” 	Hamilton v. Foster, 620 N.W.2d 103, 116 (Neb.
2000). 	While Jones may have stood in loco parentis to the child
during the time she was actually living with her and providing
for her care, her in loco parentis status terminated when Barlow
and the child moved out. 	According to common law principles,
Jones does not have standing to extend the in loco parentis
relationship against Barlow’s wishes. 	Finally, Jones is not
proceeding under the divorce statutes as did the stepparent in
Gribble. 	We conclude that recognizing a legally protectible
right under the rubric of in loco parentis would be “an
unwarranted expansion of an otherwise well-established common law
doctrine,” Coons-Andersen, 104 S.W.3d at 636, and therefore
decline to do so.
II. 	WE DECLINE TO JUDICIALLY CREATE VISITATION RIGHTS BY
ADOPTING A “DE FACTO PARENT” OR “PSYCHOLOGICAL PARENT” DOCTRINE
¶30 	What Jones essentially asks us to do is recognize a new
judicial doctrine in Utah that creates in a third party the right
to seek visitation with a child in contexts outside those
recognized by this state’s domestic relation laws. 	Whatever
label is applied to such a doctrine, it is clear that the common
law concept of in loco parentis does not reach so far. 	Were we
to recognize such a right in this case, it would have to be under

7 For a more detailed description of these doctrines, see
Chief Justice Durham’s dissent. 	Infra at ¶¶ 63-90.
Nos. 20040932, 20041031 	12
one of several judicially created doctrines that have been used
recently in other jurisdictions to confer visitation rights upon
someone other than a parent. 	Most prominent among these other
doctrines are those labeled “psychological parent,” or “de facto
parent.” 7 	E.g., Carvin v. Britain (In re Parentage of L.B.), 122
P.3d 161, 163 (Wash. 2005); V.C. v. M.J.B., 748 A.2d 539 passim
(N.J. 2000); E.N.O. v. L.M.M., 711 N.E.2d 886, 891 (Mass. 1999).
Rather than creating temporary rights and obligations that last
as long as a surrogate parent stands in the place of an actual
parent, these doctrines create permanent and abiding rights
similar to those of an actual parent. 	See L.B., 122 P.3d at 177
(“We thus hold that henceforth in Washington, a de facto parent
stands in legal parity with an otherwise legal parent, whether
biological, adoptive, or otherwise.”); V.C., 748 A.2d at 552
(“[A] psychological parent-child relationship . . . may not be
unilaterally terminated after the relationship between the adults
ends.”).
¶31 	We decline to craft such a doctrine. 	First, adopting a
de facto parent doctrine fails to provide an identifiable
jurisdictional test that may be easily and uniformly applied in
all cases. 	A de facto parent rule for standing, which rests upon
ambiguous and fact-intensive inquiries into the surrogate
parent’s relationship with a child and the natural parent’s
intent in allowing or fostering such a relationship, does not
fulfill the traditional gate-keeping function of rules of
standing. 	Under such a doctrine, a party could try the merits of
her case under the guise of an inquiry into standing, unduly
burdening legal parents with litigation. 	We agree with the
Supreme Court of Vermont that
jurisdiction should not rest upon a test that
in effect would examine the merits of
visitation or custody petitions on a case-by-
case basis. 	In reality, such a fact-based
test would not be a threshold jurisdictional
test, but rather would require a full-blown
evidentiary hearing in most cases. 	Thus, any
such test would not prevent parents from
having to defend themselves against the
merits of petitions brought by a potentially
wide range of third parties claiming a
parent-like relationship with their child.
Titchenal v. Dexter, 693 A.2d 682, 687-88 (Vt. 1997).

8 Chief Justice Durham’s dissent proposes the adoption of a
modified version of the test to determine de facto parent status
in which “a third party claiming de facto parent status [must]
establish by clear and convincing evidence that (1) the legal
parent intended to create a permanent parent-child relationship
between the third party and the child, and (2) an actual parent-
child relationship was formed.” 	Infra ¶ 68.
13 	Nos. 20040932, 20041031
¶32 	In addition to providing an unsure jurisdictional
threshold, adopting a de facto parent doctrine would exceed the
proper bounds of the judiciary. 	The essential questions
presented to the court in this case are some of the most intimate
and important that our society faces. 	In the abstract, we are
asked to define perhaps the most influential and personal
relationship ever experienced--that of parent and child. 	In
particular, we are asked to determine the future upbringing of a
child and Jones’ continued participation in that process.
¶33 	Faced with these questions, and without the benefit of
binding applicable law, Jones asks us to craft a judicial
doctrine with broad social implications that attempts to
adjudicate between competing policy considerations. 	On the one
hand, we recognize that mutual bonds of affection can be formed
between a child and an adult who does not fit within the
traditional definition of a parent and that such a relationship
has the potential to enrich the lives of both the surrogate
parent and the child. 	However, in carving out a permanent role
in the child’s life for a surrogate parent, this court would
necessarily subtract from the legal parent’s right to direct the
upbringing of her child and expose the child to inevitable
conflict between the surrogate and the natural parents. 	Such a
doctrine raises concerns that a legal parent could be deprived of
a portion of her parental rights on the basis of “elusive factual
determinations” as to whether she intended to relinquish those
rights to a third party. 8 	Van v. Zahorik, 575 N.W.2d 566, 570
(Mich. Ct. App. 1997) (internal quotation marks omitted).
¶34 	Although principled arguments can be made for the
adoption of a de facto parent doctrine, such arguments are
ultimately based upon policy preferences, rather than established
common law. 	In such situations, we find the Michigan Supreme
Court to be persuasive when it stated:
As a general rule, making social policy is a
job for the Legislature, not the courts.
This is especially true when the
determination or resolution requires placing
a premium on one societal interest at the

Nos. 20040932, 20041031 	14
expense of another: The responsibility for
drawing lines in a society as complex as
ours--of identifying priorities, weighing the
relevant considerations and choosing between
competing alternatives--is the Legislature’s,
not the judiciary’s.
Van v. Zahorik, 597 N.W.2d 15, 18 (Mich. 1999) (citations and
internal quotation marks omitted); see also State ex rel. Skeen
v. Ogden Rapid Transit Co., 112 P. 120, 125 (Utah 1910) (holding
that exceeding the judiciary’s own authority results in an undue
usurpation of legislative powers).
¶35 	Jones asks this court to exercise the wisdom of Solomon
by adopting a de facto parent doctrine based upon our weighing of
the competing policies at play. 	Although this court is routinely
called upon to make difficult decisions as to what the law is, or
even to fill the interstices of jurisprudence, in this case we
are asked to create law from whole cloth where it currently does
not exist. 	While the distinction between applying the law to
unique situations and engaging in legislation is not always
clear, by asking us to recognize a new class of parents, Jones
invites this court to overstep its bounds and invade the purview
of the legislature.
¶36 	Courts are ill-suited for such ventures. 	Courts are
unable to fully investigate the ramifications of social policies
and cannot gauge or build the public consensus necessary to
effectively implement them. 	Unlike the legislature, which may
craft a comprehensive scheme for resolving future cases and then
may repeal or amend it at any time should it prove unworkable,
courts are not agile in developing social policy. 	If we
miscalculate in legislating social policy, the harm may not be
corrected until an appropriate case wends its way through the
system and arrives before us once again--a process that may take
years or even decades. 	Moreover, our attempt to correct a prior
misstep could then damage the legal system’s reliance upon the
principle of stare decisis.
¶37 	In addition to our reticence to assume an essentially
legislative role, the creation of a de facto parent rule absent
any precedent in Utah law would be an unwarranted expansion of
the common law. 	We agree with the dissent that the common law is
a “dynamic and growing thing.” 	15A Am. Jur. 2d Common Law § 2
(2000); see infra ¶¶ 60-61. 	However, “the common law
decisionmaking process is inherently incremental in nature; the
very ‘genius of the common law is that it proceeds empirically
and gradually, testing the ground at every step’ . . . [and]

9 We note that the language quoted by the dissent from State
ex rel. J.W.F., 799 P.2d 710, 714 (Utah 1990), that nonparents
need not “stand as a total stranger to the child” makes sense in
the context of these inchoate rights. 	See infra ¶ 51. 	Taken as
a whole the passage reads:
It may be that no one has the same rights
toward a child as his or her parents. 	See
Wilson v. Family Services Div., Region Two,
554 P.2d 227, 230 (Utah 1976). 	However, the
fact that a person is not a child’s natural
(continued...)
15 	Nos. 20040932, 20041031
calls for devising a rule that does not stray too far from the
existing regime.” 	PM Group Life Ins. Co. v. W. Growers Assurance
Trust, 953 F.2d 543, 547 (9th Cir. 1992) (quoting R. Aldisert,
Logic for Lawyers 8 (1989)); accord McClure v. Life Ins. Co. of
N. Am., 84 F.3d 1129, 1135 (9th Cir. 1996); Falcone v. Middlesex
County Med. Soc., 170 A.2d 791, 799 (N.J. 1961) (“The persistent
movement of the common law towards satisfying the needs of the
times is soundly marked by gradualness. 	Its step by step process
affords the light of continual experience to guide its future
course.”). 	Creating a de facto parent doctrine for Utah would be
a dramatic expansion of the common law thereby defying the
principle of incremental development.
¶38 	Such a divergence from Utah’s established common law is
also inappropriate because there are no broadly accepted
principles to guide us to a de facto parent doctrine. 	We agree
that “our courts should avoid effecting change in the common law
of this State when there is no substantial body of agreement that
such change is necessary and when it is patent that such change
can be better effected by legislative action.” 	Duhan v.
Milanowski, 348 N.Y.S.2d 696, 701 (Sup. Ct. 1973). 	As we have
noted, this case presents us with conflicting policies upon which
there is no broad consensus. 	There are simply no bedrock
principles upon which to construct a doctrine creating visitation
rights for nonparents.
¶39 	To the extent that there are guiding principles within
the common law, they militate against a common law right of
visitation for nonparents. 	It is a fundamental tenet of our
common law that “the only persons having any actually vested
interest in the custody of a child cognizable by the law are the
parents.” 	Wilson v. Family Servs. Div., 554 P.2d 227, 229 (Utah
1976). 	Other relatives of a child merely have “some dormant or
inchoate right or interest in the custody and welfare of
children” that matures only upon the death or termination of the
rights of the parents. 9 	Id. at 230-31. 	Finally, courts may not

9 (...continued)
or legal parent does not mean that he or she
must stand as a total stranger to the child
where custody is concerned.
J.W.F., 799 P.2d at 714. 	Thus J.W.F. does not stand for the
proposition that nonparents may have common law standing to
assert visitation rights against fit parents. 	In fact, this
decision affirms that “no one has the same rights toward a child
as his or her parents.” 	Id. 	This passage merely confirms the
proposition asserted in Wilson that other relatives may have
standing to seek custody in the absence of a fit parent. 	This is
born out by the facts of J.W.F., where a stepfather was granted
standing to seek custody only when both of the biological parents
had their parental rights terminated. 	Id. at 712, 716.
10 In the case of P.N., the child’s biological mother
relinquished her parental rights and gave custody of the child to
a couple seeking to adopt him. 	2006 UT 64, ¶ 3. 	The district
court later found the mother’s relinquishment to be ineffective.
The mother and biological father both opposed the adoption and
sought custody of the child, who, at the time, was in the custody
of the prospective adoptive parents. 	Id. ¶¶ 3-4, 5. 	The trial
court found no basis for terminating the parental rights of
either of the biological parents and therefore dismissed the
petition for adoption. 	Id. ¶ 8. 	It then scheduled a “best
interests trial” and awarded custody of the child to the
prospective adoptive parents. 	Id. ¶ 9. 	We reversed, holding
that it was error for the court to award custody of P.N. to legal
strangers in the absence of an order terminating the parental
rights of his fit natural parents. 	Id. ¶ 15. 	We therefore
remanded the case for a determination of custody as between the
biological parents. 	Id. ¶ 18. 	Although the case involved
custody rather than visitation and was based upon an analysis of
the statute governing adoption, Utah Code Ann. § 78-30-4.16
(Supp. 2006), it is nevertheless illustrative of the proposition
that a child’s fit legal parent is presumed to act in his best
interests. 	Therefore, absent a statutory basis for doing so, it
is improper for a court to second-guess the decision of the fit
legal parents by conducting a “best interests” analysis.
Nos. 20040932, 20041031 	16
make a “best interests” inquiry into nonparent custody of a child
absent a determination that the legal parents are unfit. 	In re
J.P., 648 P.2d 1364, 1368-69 (Utah 1982); see also A.N. v. M.I.W.
(In re Adoption of P.N.), 2006 UT 64, ¶ 15, 148 P.3d 927. 10
Although our precedent in this area involves custody rather than
visitation, the common law nevertheless evidences a strong
presumption that parental rights shall not be disturbed absent a

11 We note that Utah Code sections 30-3-5(4)(a) and 30-5-2,
discussed below, stand as statutorily created exceptions to this
general rule because they grant standing to seek visitation
rights even against the objections of fit parents.
17 	Nos. 20040932, 20041031
determination that the legal parents are unfit. 11 	This
presumption is in direct contradiction to a de facto parent
doctrine, which interferes with a parent’s right to direct the
upbringing of her child. 	Thus, adopting such a doctrine would
not be a natural development of the common law, but rather a
legislative act in derogation of recognized common law
principles.
¶40 	Finally, the de facto parent doctrine conflicts with
Utah statutory law. 	The legislature has defined the manner in
which a parent-child relationship is established. 	The mother-
child relationship is established by
(a) the woman’s having given birth to
the child, except as otherwise provided in
Part 8, Gestational Agreement;
(b) an adjudication of the woman’s
maternity;
(c) adoption of the child by the woman;
or
(d) an adjudication confirming the woman
as a parent of a child born to a gestational
mother if the agreement was valid under Part
8, Gestational Agreement, or is enforceable
under other law.
Utah Code Ann. § 78-45g-201 (Supp. 2006). 	The legislature has
also designated which nonparents have standing to seek visitation
of a child. 	Statutes grant standing to an immediate family
member to seek visitation in the context of a divorce, id.
§ 30-3-5(4)(a), and to grandparents in certain circumstances, id.
§ 30-5-2.
¶41 	Because the legislature has spoken in this area, we are
reluctant to adopt a common law doctrine that implicitly
controverts this statutory scheme. 	The addition of a new class
of de facto parents would conflict with the legislature’s
apparently exhaustive list of who is considered a mother under
the law. 	Also, granting visitation rights to de facto parents
contradicts the legislature’s narrow grant of standing to certain

Nos. 20040932, 20041031 	18
immediate family members to petition for visitation. 	As the
dissent notes, the legislature has not explicitly addressed the
standing of a surrogate parent. 	See infra ¶ 46. 	The grant of
standing to immediate family members under certain well-defined
circumstances, however, creates the negative implication that all
other categories of nonparents are prohibited from seeking
visitation rights. 	Otherwise, the standing requirement would not
serve its function as a jurisdictional bar to litigation because
every unmentioned class of nonparent could attempt to establish
visitation rights under the common law. 	We decline to expand the
common law into an area occupied by statute so as to contradict
the apparent legislative intent.
¶42 	In sum, we decline to adopt a de facto parent doctrine
because it would be an improper usurpation of legislative
authority and would contradict both common law principles and
Utah statutory law. 	Although we have no reason to doubt the
sincerity of Jones’ parental feelings for the child, we are
unwilling to craft a doctrine which would abrogate a portion of
Barlow’s parental rights.
CONCLUSION
¶43 	We hold that the district court erred in granting Jones
standing to seek visitation. 	The common law doctrine of in loco
parentis does not convey perpetual rights that survive the
termination of the parent-like relationship. 	And we decline to
create such perpetual rights by adopting a doctrine similar to
that of “psychological parent” or “de facto parent.” 	We
therefore reverse the district court order granting visitation
and requiring Jones to pay child support.
---
¶44 	Associate Chief Justice Wilkins, Justice Durrant, and
Justice Nehring concur in Justice Parrish’s opinion.
---
DURHAM, Chief Justice, dissenting:
¶45 	I respectfully dissent. 	The facts of this case mirror
a typical divorce--two parents separated and are quarreling over
child visitation and custody. 	In this case, however, the parents
are both women, only one of whom is the biological parent of the
child they mutually decided to bring into their relationship.
Although this situation is becoming more and more common, it
presents this court with a question of first impression: 	Does

19 	Nos. 20040932, 20041031
the nonbiological mother have standing to petition for visitation
with the child despite the objections of the biological mother?
I would hold that she does, provided that she and the child have,
with the consent of the biological parent, created a de facto
parent-child relationship.
I. 	THE LEGISLATURE HAS NOT ADDRESSED A SURROGATE
PARENT’S STANDING
¶46 	I disagree with the majority’s assertion that the
“legislature has spoken in this area.” 	Supra ¶ 41. 	The majority
specifically references Utah Code section 30-3-5 (Supp. 2006),
which gives the trial court discretion to grant visitation to
immediate family members, and section 30-5-2, which governs
grandparent visitation. 	Supra ¶ 40. 	While these statutes
address visitation rights, they do not speak to the circumstances
in this case. 	For obvious reasons, the grandparent visitation
statute does not apply to Jones. 	The immediate family member
provision is inapposite because it is included within the
“Divorce” chapter of the “Husband and Wife” title of the Utah
Code. 	Furthermore, its specific terms limit its applicability to
divorces. 	For example, section 30-3-5(1) states that the section
applies only “[w]hen a decree of divorce is rendered.” 	Utah Code
Ann. § 30-3-5(1) (Supp. 2006). 	Because Jones and Barlow could
not legally marry, their separation cannot constitute a divorce,
and thus the immediate family member visitation provision does
not address the situation at hand. 	And although the majority
does not mention the provisions regarding parent-time for
divorced or divorcing parents, id. §§ 30-3-32 to -38 (Supp.
2006), I likewise do not believe that the parent-time provisions
govern the case before us.
¶47 	The policy considerations underlying the visitation
statutes would nevertheless be served by permitting Jones to
visit the child. 	A child has a need and a right to maintain a
relationship with both parents. 	For example, section
30-3-32(2)(b)(i), which governs visitation between divorced,
divorcing, or adjudicated parents, states that “it is in the best
interests of the child of divorcing . . . parents to have
frequent, meaningful, and continuing access to each parent
following separation.” 	Likewise, section 30-3-5(5)(a) recognizes
that, in some circumstances, visitation with “immediate family”
members may serve a child’s best interests.
¶48 	Jones has been, literally and for all intents and
purposes, a member of the child’s immediate family since her
birth. 	The term “immediate family member” is not defined in
conjunction with section 30-3-5 or anywhere else in Title 30.

Nos. 20040932, 20041031 	20
However, the term is defined in other sections of the Utah Code.
The Utah Code definition of “immediate family member” generally
includes spouses, children, parents, and siblings, id.
§§ 7-9-3(7) (2006), 76-8-316(4)(a) (2003), but it also may
include grandparents, grandchildren, and nieces and nephews. 	See
id. § 26-2-22(3)(a) (Supp. 2006) (including grandparents and
grandchildren in definition); id. § 34A-2-103(5)(a)(ii) (Supp.
2006) (including grandparents, grandchildren, nephews, and nieces
in definition); id. § 36-11-102(5) (2005) (defining immediate
family as a spouse or child residing in the household). 	The most
expansive definition of immediate family member is found in Utah
Code section 76-5-106.5, which addresses stalking. 	In that
section, an immediate family member is defined as “a spouse,
parent, child, sibling, or any other person who regularly resides
in the household or who regularly resided in the household within
the prior six months.” 	Id. § 76-5-106.5(1)(b) (2003) (emphasis
added). 	Under this definition, Jones would be an immediate
family member because she regularly resided in the same household
as the child within six months prior to the initiation of this
suit.
¶49 	I believe Jones satisfies any reasonable definition of
immediate family member because she was, de facto, the child’s
parent. 	By caring for the child from her infancy and for the
first two years of her life, Jones, with the acquiescence and
encouragement of Barlow, acted as the child’s “other parent.”
Although the reality and nature of this relationship has not been
explicitly acknowledged by Utah’s statutory law, Jones and Barlow
did everything within their power to make Jones the legal
equivalent of a parent. 	When Jones and Barlow solemnized their
relationship with a Vermont civil union, the state of Vermont
endowed Jones with the same rights granted to a spouse. 	See Vt.
Stat. Ann. tit. 15, § 1204 (2002). 	Under Vermont law, the civil
union makes Jones an immediate family member and grants her the
same rights as a spouse with respect to a child born to Barlow
during the civil union. 	Id. § 1204(f). 	Although the parties
have not addressed the effect of their Vermont civil union on
their rights, the undertaking of that status conclusively
demonstrates that when the parties entered into it, they intended
Jones to be a parent to any children born to them. 	Likewise, the
guardianship petition, which was filed and granted under Utah
law, strongly supports the conclusion that the parties regarded
Jones as a full-fledged parent. 	Indeed, the guardianship
petition stated that “[Jones] is the only other parent that [the
child] knows or will know,” and the supporting memorandum stated
that “[s]ince [the child’s] birth, [Jones] has served as her
other parent in all regards.” 	Based on the parties’ actions, it
is clear that the parties did everything they could to make their

21 	Nos. 20040932, 20041031
relationship, with regard to themselves and the child, as much
like the “traditional family”--two married parents and children--
as possible. 	There were virtually no functional differences from
a traditional union insofar as the care and treatment of their
child was concerned. 	Nevertheless, the statutes do not address
either Jones’ or the child’s rights in this situation.
¶50 	As the legislature recognized by enacting visitation
statutes, children have the right to maintain relationships with
their parents as well as with persons with whom they have formed
deep, parent-like bonds. 	A child’s rights and best interests do
not change depending on whether his or her parental figures are
recognized as parents under the law or whether they are simply
parents in fact. 	Thus, in this case, the child’s need for, and
right to, a continuing relationship with both of her parents is
not diminished by the fact that only one is a biological parent
or that her parents were not legally married. 	Therefore,
granting standing to Jones would further the legislative policy
of protecting children who have formed such bonds, even though
the statutes do not specifically apply.
II. 	BECAUSE THE LEGISLATURE HAS NOT SPOKEN ON THIS ISSUE, THIS
COURT SHOULD LOOK TO THE COMMON LAW
¶51 	In the absence of a controlling statutory provision, I
look to our common law. 	This court has recognized that a person
who is not a child’s natural or legal parent does not necessarily
“stand as a total stranger to the child.” 	State ex rel. J.W.F.,
799 P.2d 710, 714 (Utah 1990). 	Traditionally, a third party’s
right to visitation has arisen under the doctrine of in loco
parentis. 	For example, in Gribble v. Gribble, 583 P.2d 64 (Utah
1978), this court relied on the doctrine of in loco parentis to
hold that a stepparent was a parent for purposes of the divorce
statute and, accordingly, granted the stepparent standing to
petition for visitation. 	Id. at 66-68.
¶52 	While we applied in loco parentis in the context of a
statutory divorce proceeding in Gribble, I reject the notion that
in loco parentis applies only in conjunction with a statute. 	In
loco parentis is a common law doctrine. 	That a common law
doctrine may inform our statutory interpretation in some cases
does not strip the common law of its ability to stand on its own
in the absence of an applicable statute. 	Nothing in Gribble, or
in any subsequent case, limits the doctrine of in loco parentis
to divorce proceedings, and I believe it can apply
notwithstanding the absence of a controlling statute in this
case. 	In fact, as common law, it is arguably more pertinent in a
case such as the one before us, where there is not a relevant

Nos. 20040932, 20041031 	22
statute, than in Gribble, where there was a statute applying to
the dissolution of legal marriages.
¶53 	Nevertheless, I concede that the doctrine of in loco
parentis has its limitations. 	As the majority recognizes, in
loco parentis is a temporary status that lasts only as long as
the third party assumes the role of a parent in the child’s life.
See 59 Am. Jur. 2d Parent and Child § 9 (2002); supra ¶ 15. 	It
does not grant rights or impose duties--such as visitation or
support--once either the surrogate parent or the child has
decided to end the relationship.
¶54 	I likewise agree with the majority’s assertion that the
Gribble court erred in concluding that only the surrogate parent
or the child can terminate the parental relationship. 	Supra
¶ 17. 	I disagree, however, with the majority’s analysis as to
why that conclusion was erroneous. 	Gribble’s conclusion that
only the surrogate parent or child can terminate an in loco
parentis relationship is not erroneous because the cases on which
it relies or legal encyclopedias state only that an in loco
parentis relationship “may” be terminated by either the surrogate
parent or the natural parent. 	While legal commentary or case law
from our sister states, even case law on which we have relied,
may differ from our statement of the law, such variances do not
abrogate our conclusions. 	We are not bound to interpret our
common law in the same way as our sister states or other
commentators. 	Thus, even though the cases cited in Gribble do
not state that “only” the surrogate parent or the child can
terminate the relationship, that does not necessarily mean that
we reached a faulty conclusion.
¶55 	Rather, I believe Gribble’s statement that only the
surrogate parent or the child can terminate an in loco parentis
relationship is erroneous because, as a matter of principle, it
gives an unfair advantage to surrogate parents, essentially
allowing them to use in loco parentis as both a shield and a
sword. 	To use the majority’s example, it allows surrogate
parents to use in loco parentis as a way to shield themselves
from support obligations by arguing they have terminated the
relationship, while in other instances, it allows the surrogate
parent to continue the in loco parentis relationship despite the
objections of the biological parent. 	Supra ¶ 24. 	I agree with
the majority that this is an absurd result and, on policy
grounds, likewise reject the notion that a biological parent
cannot sever an in loco parentis relationship. 	Thus, I agree
that Jones’ in loco parentis status terminated when Barlow and
the child moved out.

1 The parties have not raised or argued the effect of their
lawful civil union in Vermont, but its existence does enhance the
analogy of Jones’ status to that of a stepparent in that these
parents took the only step available to them to legalize their
relationship.
23 	Nos. 20040932, 20041031
¶56 	This conclusion does not, however, change my belief
that Jones has standing under our common law. 	Perhaps due to the
limitations of the doctrine of in loco parentis, this court’s
decisions to grant standing to third parties have not been
limited to in loco parentis cases. 	For example, in J.W.F., we
granted a petitioner standing to petition for custody of his
estranged wife’s child. 	799 P.2d at 712. 	In that case, the
petitioner had never acted as a parent toward the child because
the child was born while the petitioner and his wife were
separated, although they remained legally married. 	Id. 	In fact,
the petitioner did not even know about the child until after his
wife had abandoned the child and the state had filed a neglect
and abandonment petition. 	Id. 	We granted the petitioner
standing based on his stepparent status and his legal support
obligations. 	Id. at 716. 	In so holding, we recognized that
“[c]ertain people, because of their relationship to a child, are
at least entitled to standing to seek a determination as to
whether it would be in the best interests of the child for them
to have custody.” 	Id. at 714; see also Wilson v. Family Servs.
Div., 554 P.2d 227, 230-31 (Utah 1976) (granting grandmother a
hearing on her petition to adopt grandchild after the parents’
rights were terminated).
¶57 	In J.W.F., we recognized several factors that may
justify granting standing to a third party, such as financial
obligations or the person’s status or relationship to a child.
799 P.2d at 715. 	We noted that the relationship of a close
relative who has the child’s best interests at heart “would seem
to warrant a grant of standing.” 	Id. 	However, we specifically
declined to limit standing to a petitioner related to a child by
marriage 1 or to divorce proceedings, noting that “it is
conceivable that persons who are not related by blood or
marriage, although not presumptively entitled to standing, could
show that they had a relationship with the child that would
warrant a grant of standing.” 	Id. at 715 n.4.
¶58 	I would therefore conclude that Jones has standing
under our common law. 	My conclusion is not based on the doctrine
of in loco parentis, nor is it based on any specific prior case
issued by this court. 	Indeed, as the majority points out, there
is no binding case law regarding an unmarried partner’s standing

2 Some courts have used the term psychological parent to
refer to a third party who has, with the consent of the legal
parent, assumed a parent-like relationship with a child. 	See,
e.g., V.C. v. M.J.B., 748 A.2d 539, 555 (N.J. 2000) (holding that
“[t]hird parties who live in familial circumstances with a child
and his or her legal parent may achieve, with the consent of the
legal parent, a psychological parent status vis-a-vis a child”
(emphasis added)). 	While cases using the term psychological
parent are very similar to this case, I consider the term de
facto parent more descriptive functionally.
3 De facto parenthood is a two-way street. 	While de facto
parent status entitles a third party to standing for visitation,
it also requires a de facto parent to provide financial support
for the child. 	See Chambers v. Chambers, 2005 Del. Fam. Ct.
LEXIS 1, *22 (holding that a de facto parent could be equitably
(continued...)
Nos. 20040932, 20041031 	24
rights. 	Supra ¶¶ 1-2. 	Rather, I would recognize that Jones has
standing because she is a de facto parent.
¶59 	Like a person holding in loco parentis status, a de
facto parent 2 is a person “who, on a day-to-day basis, assumes
the role of parent, seeking to fulfill both the child’s physical
and psychological needs.” 	I.F. v. K.M. (State ex rel. C.M.),
2000 UT App 115, ¶ 3 (citing In re Hirenia C., 22 Cal. Rptr. 2d
443, 448 (Ct. App. 1993)); see also Miller v. Cal. Dep’t of Soc.
Servs., 355 F.3d 1172, 1176 (9th Cir. 2004). 	There are, however,
some differences between the in loco parentis and de facto
parenthood doctrines. 	There are certain evidentiary criteria,
which I will discuss in Section III, that are not required in in
loco parentis cases but that are required in de facto parent
cases in order for a third party to show that he or she has, with
the legal parent’s intent, formed a parent-child relationship
with the child. 	Further, while in loco parentis imposes only
temporary rights and obligations on a surrogate parent, de facto
parenthood is permanent. 	Functionally, a de facto parent is just
like the child’s legal parent. 	The only difference is that a de
facto parent is not biologically related to the child and does
not have an adjudicated parental status such as adoption.
Because de facto parenthood is more akin to actual parenthood, de
facto parents cannot unilaterally sever their obligations to the
child. 	Nor can a legal parent independently sever a de facto
parent’s rights. 	Rather, once a child shares a de facto parent
relationship with a third party, the child has a vested right to
support from the de facto parent as well as to maintain a
relationship with that parent, despite the objections of either
the de facto or legal parent. 3

3 (...continued)
estopped from denying she owed a support obligation to her former
partner’s child). 	This is entirely consistent with the purpose
of de facto parenthood: 	to provide children with the parental
support and protection to which they are entitled. 	In fact, the
district court in this case ordered Jones to pay child support, a
result that will presumably be impossible under the majority’s
analysis.
25 	Nos. 20040932, 20041031
¶60 	I recognize that de facto parenthood has never been
recognized by this court. 	The absence of a binding judicial
pronouncement on an unmarried surrogate parent’s right to
standing does not mean that we must conclude that Jones does not
have standing under the common law. 	In fact, in the arena of
domestic relations, “judges have traditionally decided . . .
questions using common law methods,” Ann Laquer Estin, Family
Governance in the Age of Divorce, 1998 Utah L. Rev. 211, 238, and
the “common law is not static, but is rather a dynamic and
growing thing,” 15A Am. Jur. 2d Common Law § 2 (2000). 	Our
ability to decide cases on common law grounds is therefore not
limited to common law doctrines that have been explicitly
developed in prior case law. 	See Housing Fin. & Dev. Corp. v.
Ferguson, 979 P.2d 1107, 1115 (Haw. 1999) (noting that the common
law is not “limited to published judicial precedent”). 	Rather,
the common law embodies “broad and comprehensive unwritten
principles, inspired by natural reason and an innate sense of
justice.” 	15A Am. Jur. 2d Common Law § 1 (2000). 	It “is
constantly expanding and developing in keeping with advancing
civilization and the new conditions and progress of society.”
Id. § 2.
¶61 	The common law is able to adapt and grow because the
common law system endows courts with “judicial inventiveness to
meet new situations.” 	Id. 	Indeed, by definition, the common law
is “judge-made” law. 	M. Stuart Madden, The Vital Common Law:
Its Role in a Statutory Age, 18 U. Ark. Little Rock L.J. 555, 558
(1996). 	As one judge has recognized, the common law encompasses
“‘any body of law created primarily through judges by their
decisions rather than by the framers of statutes or
constitutions.’” 	Id. (emphasis added) (quoting Richard A.
Posner, The Problems of Jurisprudence 247 (1990)). 	Thus, the
judicial role in a common law system is not solely to apply
legislative enactments. 	Where the legislature has not acted, we
frequently exercise the power to articulate rights and

4 It is important that this court not abdicate its
responsibility to address new and difficult legal questions that
come before it. 	By examining new issues in relation to our
common law principles, this court engages in a dialogue with the
legislature, whose members can benefit from our careful
consideration and analysis of the law in relation to the changing
world in which we live.
5 As I discuss later in this opinion, the fact that such
relationships are formed with the full consent and participation
of a biological or legal parent is important. 	A relationship
undertaken without such consent and participation should not have
de facto parent status because of the risk that it will undermine
the cohesiveness and parental control presumed to exist in intact
families.
Nos. 20040932, 20041031 	26
obligations that have not previously been recognized. 4 	The
history of tort law, contract law, property law, domestic
relations law, employment law, and even the criminal law reflects
this law-development function of state courts. 	This case raises
a question that has not heretofore been addressed by either the
courts or the legislature in Utah. 	We have, however, recognized
that in some cases a third party ought to have standing in
proceedings affecting the custody of children and that
[t]here is no reason to narrowly restrict
participation in custodial proceedings.
Indeed, our case law and the legislature’s
pronouncements indicate that the interests of
the child are best served when those
interested in the child are permitted to
assert that interest. 	The question of who
should have custody of the child is too
important to exclude participants on narrowly
drawn technical grounds . . . . 	Those who
have legal or personal connections with the
child should not be precluded from being
heard on best interests.
J.W.F., 799 P.2d at 716 (emphasis added); see also Gribble, 583
P.2d at 68. 	I would therefore recognize de facto parent standing
as a common law principle in order to serve the broader policy
regarding a child’s right to visitation with an individual with
whom she has formed a true parental bond. 	To hold otherwise
ignores the reality that children can and do form parent-child
relationships with persons with whom they do not share a
biological legal connection. 5 	For example,

27 	Nos. 20040932, 20041031
Daily contact with, continuous reliance on,
and the development of psychological
attachments to unrelated persons will often
stimulate a sense of “family” among
biologically unrelated individuals. 	It is
within this framework of expanding social
definitions of the family that adults who are
not the biological parents of the children
they care for come to be seen as parents.
The daily interactions that take place
between children and their nonbiological
caregivers and the corresponding
psychological attachments that form between
them effectively elevate their relationships
to that of a parent and a child, rather than
simply that of a child and a caregiver. 	As a
result, children routinely form parent-child
relationships with their stepparents,
adoptive parents, foster parents, and even
aunts, uncles, and grandparents who care for
them on a daily basis.
Mellisa Holtzman, Definitions of the Family as an Impetus for
Legal Change in Custody Decision Making: Suggestions from an
Empirical Case Study, 31 Law & Soc. Inquiry 1, 9 (2006) (citation
omitted). 	As the “nontraditional family” becomes more prevalent
in our society, children will increasingly form parent-child
relationships with third parties.
¶62 	While this case is, in part, about parental rights, it
is also about whether children in nontraditional families, with
nontraditional but nonetheless real parents, are entitled to have
their interests addressed just as if they had been born into
traditional families. 	The child in this case is the product of a
same-sex relationship, but she just as easily could have come
from a more traditional one. 	Her opportunity to have the courts
determine whether visitation with one of her parents is important
to her present and long-term best interests should not be
foreclosed. 	Indeed, children of dissolving, nontraditional
relationships are just “as likely to become . . . victim[s] of
turmoil and adult hostility as [are children] subject to the
dissolution of a [traditional] marriage.” 	Holtzman v. Knott (In
re Custody of H.S.H-K.), 533 N.W.2d 419, 421 (Wis. 1995), cert.
denied, 516 U.S. 975 (1995). 	These children “need[] and
deserve[] the protection of the courts as much as [children] of
[] dissolving traditional relationship[s].” 	Id. 	To deny the
forum of the courts for the resolution of children’s interests in
nontraditional contexts would be to deny those children the

6 The majority repeatedly states that parents are the only
persons with rights to custody of a child. 	Supra ¶ 39 & n.9. 	In
the case before us, however, we are dealing with the issue of
visitation--distinct from custody. 	In the context of visitation,
the rights of third parties do not “mature” only upon the death
of a parent or the termination of parental rights. 	This is
evidenced by Utah’s grandparent visitation statute. 	See Utah
Code Ann. § 30-5-2; Uzelac v. Thurgood (In re Estate of S.T.T.),
2006 UT 46, 144 P.3d 1083 (upholding grant of visitation to
grandparents when the father was not unfit or deceased).
Additionally, the majority states that “parental rights shall not
be disturbed absent a determination that the legal parents are
unfit.” 	Supra ¶¶ 39, 28. 	The United States Supreme Court held
otherwise in Troxel v. Granville, 530 U.S. 57 (2000) (plurality
opinion), and this court agreed in In re Estate of S.T.T., 2006
UT 46, both cases discussed infra Section IV.
By the same token, the majority relies on the status of
“mother” or “parent.” 	Supra ¶ 40. 	We note that Jones is seeking
only rights to visitation with the child, not all the rights
associated with being a parent, an arrangement beyond the scope
of this opinion.
Nos. 20040932, 20041031 	28
protections afforded to all other children. 	This is contrary to
“the public welfare and the true interests of justice.” 	15A Am.
Jur. 2d Common Law § 2 (2000). 	Accordingly, I would hold that de
facto parents have standing to petition for visitation. 6
¶63 	I am not the first to reach this conclusion; other
courts have confronted the visitation rights of a de facto parent
in the absence of an authorizing statute and have granted
standing to de facto parents. 	For example, in 1995 the Wisconsin
Supreme Court decided H.S.H-K., where two women who had shared a
committed relationship for ten years decided to have a child
through artificial insemination. 	533 N.W.2d at 421. 	As in this
case, both women actively participated in doctor visits,
childbirth classes, and the actual delivery. 	Id. 	When the child
was born, the women gave the baby a surname that combined both of
their last names. 	Id. at 421-22. 	Thereafter, the two women and
the child lived together, both women actively parented the child,
and they held themselves out as a family. 	Id. at 422. 	Several
years later, the relationship between the two women dissolved,
and the biological mother attempted to terminate the relationship
between the child and her former partner. 	Id. 	The partner filed
a petition for custody and visitation. 	Id.
¶64 	The Wisconsin Supreme Court determined that the partner
did not have standing under the state’s relevant custody statute,
which conditioned third-party standing on a showing of parental

7 L.B. and H.S.H-K. are in accord with other jurisdictions
that have used the common law to grant standing to a third party
who has developed a parent-like relationship with a child. 	See,
e.g., E.N.O. v. L.M.M., 711 N.E.2d 886, 890-92 (Mass. 1999),
cert. denied, 528 U.S. 1005 (1999) (determining that the court’s
equitable powers governed the resolution of a same-sex partner’s
de facto parent claim despite a lack of statutory authority);
T.B. v. L.R.M., 786 A.2d 913, 917 (Pa. 2001) (rejecting the
argument that a partner lacked standing because the statutory
(continued...)
29 	Nos. 20040932, 20041031
unfitness. 	Id. at 423-24 (discussing Wis. Stat. § 767.24 (1991-
92)). 	The partner had not made such a showing. 	Id. at 424. 	In
addition, the court determined that the state’s visitation
statute did not give the partner standing because it applied only
when there had been a dissolution of a marriage. 	Id. at 424,
429-30. 	Because the parties were a same-sex couple, there was no
marital dissolution and the statute did not apply. 	Id. 	The
court determined that the legislature had not occupied the field
and relied on its equitable powers to hold that a court may hear
a petition for visitation when it determines the petitioner has a
“parent-like” relationship with the child and a significant
triggering event, such as the severance of the relationship
between a child and a parental figure, justifies state
intervention. 	Id. at 424-25, 435.
¶65 	More recently, the Washington Supreme Court decided
Carvin v. Britain (In re Parentage of L.B.), 122 P.3d 161 (Wash.
2005), cert. denied, 126 S. Ct. 2021 (2006). 	Like H.S.H-K., L.B.
involved two women in an intimate relationship who decided to
have a baby by artificial insemination. 	Id. at 164. 	When the
child was born, the women and the child lived together as a
family unit with both women sharing parenting responsibilities.
Id. 	The child called her biological mother “mama” and the
mother’s partner “mommy.” 	Id. 	When the child was six, the
parties separated, and shortly thereafter, the biological mother
unilaterally terminated the relationship between the child and
her former partner. 	Id. 	The court looked to Washington’s
statutes and found that they were “conspicuously silent”
regarding the rights of children in nontraditional families. 	Id.
at 169. 	However, the court found that the statutes displayed an
intent to protect the welfare of children and did not provide any
evidence that the legislature intended to preempt the court’s
common law jurisprudence over circumstances not yet contemplated
by the legislature. 	Id. at 172-73, 176-77. 	Thus the court held
that a de facto parent would have standing and remanded to the
district court for a determination of whether the partner
qualified as a de facto parent. 7 	Id. at 179.

7 (...continued)
scheme did not encompass former partners or paramours and finding
standing under the common law doctrine of in loco parentis).
Nos. 20040932, 20041031 	30
¶66 	Like these jurisdictions, I would recognize common law
standing for de facto parents. 	I therefore turn to a discussion
of what a third party must prove in order to obtain de facto
parent status.
III. 	THE DE FACTO PARENT TEST AND ITS APPLICATION TO JONES
¶67 	The determination that a de facto parent has standing
to petition for visitation does not end the analysis, which must
include consideration of what a petitioner must demonstrate to
establish that he or she is a de facto parent. 	In Holtzman v.
Knott (In re Custody of H.S.H-K.), 533 N.W.2d 419 (Wis. 1995),
cert. denied, 516 U.S. 975 (1995), the Wisconsin Supreme Court
established a four-part test to determine whether the petitioner
was a de facto parent. 	Id. at 435-36. 	Under that test, the
petitioner must prove:
(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.
Id.; see also V.C. v. M.J.B., 748 A.2d 539, 551-52 (N.J. 2000),
cert. denied, 531 U.S. 926 (2000) (adopting the H.S.H-K. four-
part test to determine de facto parent standing); Carvin v.
Britain (In re Parentage of L.B.), 122 P.3d 161, 177 (Wash.
2005), cert. denied, 126 S. Ct. 2021 (2006) (same).
¶68 	Although I find the Wisconsin test very helpful, I
would revise it slightly. 	The elements requiring that the
petitioner live with the child, assume parental obligations, and

31 	Nos. 20040932, 20041031
assume the role of a parent for a sufficient length of time all
relate to the ultimate question of whether a parent-child
relationship actually existed between the petitioner and the
child. 	Thus, I would simplify the test by combining the second,
third, and fourth parts of the Wisconsin test into one element
requiring the petitioner to establish the existence of an actual
parent-child relationship between the petitioner and the child.
I would therefore require that a third party claiming de facto
parent status establish by clear and convincing evidence that
(1) the legal parent intended to create a permanent parent-child
relationship between the third party and the child, and (2) an
actual parent-child relationship was formed. 	To establish the
second element, a third party must, at a minimum, present
evidence demonstrating that the third party lived with and cared
for the child and that, as a result, a parent-child bond
developed between the third party and the child.
¶69 	The facts in this case easily satisfy this test,
although I recognize that other cases may not be so clear. 	I
therefore emphasize that de facto parent status is “limited to
those adults who have fully and completely undertaken a
permanent, unequivocal, committed, and responsible parental role
in the child’s life,” C.E.W. v. D.E.W., 845 A.2d 1146, 1152 (Me.
2004), and that undertaking must generally be with the full
consent, encouragement, and cooperation of a fit custodial
parent. 	I would therefore require that a petitioner claiming de
facto parent status prove the two elements of our test by clear
and convincing evidence. 	This burden of proof sets a high
threshold, not easily cleared or automatically met by every
person who lives with or cares for a child.
¶70 	The majority suggests that the “fact-intensive
inquir[y]” necessary to determine de facto parent status falls
outside the bounds of the traditional role of standing as a gate-
keeping tool in litigation. 	Supra ¶ 31. 	This court, however,
has recognized that “some cases require more extensive fact-
finding in order to assess whether the plaintiff’s interest in
the dispute is sufficient to give rise to” standing. 	Sierra Club
v. Sevier Power Co., 2006 UT 74, ¶ 28 & n.3, 148 P.3d 960 (noting
that the determination of whether plaintiff’s interests are
sufficient or too attenuated “must be made on a case-by-case
basis, taking into account all relevant facts and the policies
underlying our standing requirement”); see also Washington County
Water Conservancy v. Morgan, 2003 UT 58, 82 P.3d 1125 (requiring
extensive fact-finding, including a trial and expert testimony,
to determine if plaintiff had standing). 	While we noted in
Sierra Club that instances of intensive factual development at
the standing phase are rare, they do exist, 2006 UT 74, ¶ 28 n.3,

8 A parent may delegate to a third party a degree of
parental authority that the parent intends, from the outset, to
be temporary. 	Examples of such temporary delegation include a
parent’s appointment of a third party to care for a child while
the parent completes military service, serves a prison sentence,
or is hospitalized for an extensive period. 	Third parties that
are meant to stand in the place of a parent for only a temporary
period of time are not eligible for de facto parent standing.
9 The majority cites In re Adoption of P.N. for the
proposition that custody may not be awarded to a third party
absent the termination of parental rights of the natural parents.
Supra ¶ 39 & n.10. 	The majority again relies on a case where the
parties were seeking not only permanent custody, but adoption.
Furthermore, the language from P.N. states that the rights of the
(continued...)
Nos. 20040932, 20041031 	32
and de facto parenthood cases may present one such situation.
While the inquiry into whether de facto parent status exists may
require a fact intensive inquiry at the standing phase, it in no
way supplants the ultimate issue in a visitation dispute–-the
best interests of the child. 	Thus, a determination of de facto
parenthood would not replace a trial on the merits. 	While the
determination of de facto parenthood may burden the legal parent
with litigation, in instances where the inquiry will be factually
intensive, a legal parent has already allowed a significant
relationship to develop between his or her child and a third
party, and thus, the legal parent’s rights must yield in favor of
the best interests of the child. 	The issue of de facto parent
status simply presents an example of the rare situation when the
determination of standing may involve complex factual inquiries
that a court must consider before it examines the merits of the
case. 	I now proceed to discuss each part of the de facto parent
test and its application to Jones.
A. 	Intent of the Legal Parent
¶71 	A party claiming de facto parent status must first show
that the legal parent intended the third party and the child to
form a permanent parent-child relationship. 	For this step to be
satisfied, the court must find that the legal parent’s “own
actions led to the creation of [a] parental bond” between the
third party and the child, J.C. v. C.T., 711 N.Y.S.2d 295, 299
(Fam. Ct. 2000), and that at the time the bond formed, the legal
parent intended it to be permanent, as opposed to temporary,
however long. 8 	In other words, the legal parent must have
consented to and fostered the petitioner’s formation and
establishment of a parental relationship with the child. 9 	See

9 (...continued)
biological parents could not be “permanently cut off” when the
parents “have not been found unfit” and when they “have not
consented to such placement.” 	A.N. v. M.I.W. (In re Adoption of
P.N.), 2006 UT 64, ¶¶ 4, 15, 148 P.3d 927. 	The facts in P.N.
were vastly different from those in the case before us. 	Whereas
Barlow fostered the relationship between Jones and the child,
P.N. was placed with the prospective adoptive family without the
biological father’s consent, and he adamantly objected to the
custody arrangement with legal strangers from its initiation.
Id. ¶ 4. 	The lack of consent by the biological parent in P.N.
sets that case apart from the predicament that Jones finds
herself in today, where the biological parent encouraged the
relationship and is now objecting to its continuation in any
manner. 	Additionally, in P.N., the complete deprivation of the
biological parents’ rights was at issue; Jones does not seek to
eliminate the child’s relationship with Barlow, but merely asks
to continue her relationship with the child because she has acted
as a de facto parent to the child since birth.
33 	Nos. 20040932, 20041031
V.C., 748 A.2d 539, 552 (N.J. 2000), cert. denied, 531 U.S. 926
(2000). 	A third party can prove this by showing that the legal
parent “ceded over to the third party a measure of parental
authority and autonomy and granted to that third party rights and
duties vis-a-vis the child that the third party’s status would
not otherwise warrant.” 	Id.
¶72 	The focus of this part of the test is on the legal
parent’s intent at the formation and during the pendency of the
parent-child relationship, not at the termination of the
relationship between the legal parent and a third party. 	Id.;
see also T.B. v. L.R.M., 786 A.2d 913, 919 (Pa. 2001) (noting
that what is relevant to an in loco parentis determination is the
method by which a third party gained authority to assume parental
status, and holding that where the biological parent encouraged
the partner to assume the status of parent and acquiesced as the
partner carried out day-to-day care of the child, she could not
erase the relationship created with the child after the parties
separated). 	Once the legal parent intentionally creates a de
facto parent for his or her child, the legal parent cannot later
change his or her mind and unilaterally sever or alter the nature
of that relationship. 	However, this does not mandate that a
legal parent form this intent at the conception or birth of the
child. 	The de facto parent’s participation in the actual
decision to have a child and the process of conception, while
highly probative of intent where present, is not required. 	See
V.C., 748 A.2d at 552-53 (recognizing that the situation in which
the partner does not participate in the decision to conceive

Nos. 20040932, 20041031 	34
“parallel[s] the situation in which a woman, already pregnant or
a mother, becomes involved with or marries a man who is not the
biological or adoptive father of the child, but thereafter fully
functions in every respect as a father”). 	A parent can intend to
create a de facto parent-child relationship with a third party
anytime during the child’s life.
¶73 	The intent requirement is critical because it ensures
that the legal parent “has the absolute ability to maintain a
zone of autonomous privacy for herself and her child.” 	Id. at
552. 	If the legal parent wishes to maintain that zone of
privacy, he or she need only choose not to delegate parental
authority or encourage the formation of a permanent, parent-like
relationship between his or her child and another party, and
avoid any overt acts in furtherance of such a relationship.
Moreover, the intent requirement limits the people who can
qualify as de facto parents. 	For example, under this standard, a
nanny or other caretaker will not qualify as a de facto parent
because a parent does not intend these relationships to be
parental or permanent. 	Additionally, this part of the test
prevents roommates, live-in boyfriends or girlfriends, or
significant others from automatically qualifying as de facto
parents. 	While a party that lives with a legal parent and his or
her children will likely participate in parental responsibilities
to some degree, that participation, by itself, is not enough. 	A
claimant in this position would have to show by clear and
convincing evidence that the legal parent intended to create a
parent-child relationship and intentionally ceded over a
sufficiently significant amount of parental responsibility to
create a permanent parental relationship between the claimant and
the child. 	I believe the intent requirement gives due
consideration to a parent’s right to maintain an autonomous zone
of privacy. 	However, if the legal parent wishes to keep intact
this zone of privacy, he or she cannot give a third party
“parental authority the exercise of which may create a profound
bond with the child.” 	Id.
¶74 	A party claiming de facto parent status must do more
than merely allege intent; the party must also point to specific
behavior of the legal parent that clearly manifests that intent.
This is a case-specific requirement that can be satisfied by a
variety of behavioral evidence. 	There is not, therefore, any
specific factor that is required or that will, on its own, be
conclusive. 	Rather, a court must carefully examine all of the
evidence to determine whether proof of the requisite intent is
clear and convincing.

35 	Nos. 20040932, 20041031
¶75 	In the case before us, Barlow’s behavior amply
demonstrates that, even before the child’s birth, Barlow intended
Jones to be an equal, permanent parent. 	Shortly after becoming
engaged, Barlow and Jones mutually decided to have children
together and formulated a plan whereby Barlow would bear the
first child and Jones would bear the second. 	Pursuant to this
plan, Barlow allowed Jones to participate in the selection of a
sperm donor, and together the parties selected a donor that
shared both of their traits. 	Jones attended all prenatal matters
relating to the artificial insemination and, following
conception, participated in prenatal care with Barlow and the
physician. 	During the pregnancy, Jones and Barlow entered into a
civil union which, at least in Vermont, conferred rights on each
of them respecting children born during the union. 	Barlow
allowed Jones to be present at the delivery and participate to
the extent possible. 	After the child was born, Barlow and Jones
chose a name that would reflect both of their surnames and listed
that name on the birth certificate.
¶76 	Barlow continued to openly exhibit her intent that
Jones function in a parental role after the child’s birth.
Barlow, Jones, and the child lived together and held themselves
out as the “Jones-Barlow” family. 	Barlow and Jones both held
themselves out as the child’s parents. 	The child and Barlow both
called Jones “Mommy,” while Barlow was called “Momma.” 	Jones
provided financial support for the child, attended pediatric
appointments with her, and participated in her daily care through
such activities as dressing her, feeding her, and taking her to
child care. 	Jones would not have been able to participate in
these activities, at least to the extent she did, without
Barlow’s consent.
¶77 	Perhaps the most convincing fact is that Barlow
designated Jones as the child’s legal co-guardian. 	In fact, the
“Verified Petition for Appointment of Co-Guardians for a Minor”
stated that “[Jones] is the only other parent that [the child]
knows or will know” and the Supporting Memorandum stated that
“[s]ince [the child’s] birth, [Jones] has served as her other
parent in all regards.” Jones and Barlow took further steps to
ensure that Jones could protect the child as she would if she
were a legal parent, including preparing estate planning
documents and naming each other as beneficiaries on life
insurance policies to ensure that the child would be cared for in
an emergency.
¶78 	I do not mean to suggest that designating another party
as a co-guardian, standing alone, is determinative. 	To the
contrary, I do not believe that a co-guardianship, on its own,

Nos. 20040932, 20041031 	36
would be enough to satisfy this part of the test given that co-
guardianships are established for a number of reasons, many of
which do not involve the intent to create a permanent parent-
child relationship. 	However, combined with Jones’ participation
in bringing the child into the world and her daily support
thereafter, I find the language and content of the co-
guardianship petition in this case particularly persuasive.
¶79 	Other jurisdictions have relied on actions similar to
Barlow’s in determining whether a third party is a de facto
parent. 	For example, in V.C., the mother and her partner jointly
decided to have children, chose a sperm donor, and participated
in prenatal care together. 	748 A.2d at 542-43. 	The children
called the partner “Meema,” and the biological mother referred to
her partner as the mother of her children. 	Id. at 543. 	The
parties and the children lived together as a family, and the
partner assumed many day-to-day obligations of parenthood and
provided financial support. 	Id. 	The New Jersey Supreme Court
held that the record supported the conclusion that the mother had
“fostered and cultivated, in every way, the development of a
parent-child bond between [her partner] and [her children].” 	Id.
at 555.
¶80 	Likewise, in E.N.O. v. L.M.M., the court held that the
mother’s partner was a de facto parent. 	711 N.E.2d 886, 892-93
(Mass. 1999), cert. denied, 528 U.S. 1005 (1999). 	There, the
parties jointly decided to have a child, the partner cared for
the mother during pregnancy, the child was given both parties’
surnames, the parties sent out birth announcements listing them
both as parents, and the partner assumed most of the financial
responsibility for the family and assisted in caring for the
child. 	Id. at 888-89; see also Carvin v. Britain (In re
Parentage of L.B.), 122 P.3d 161, 163-65 (Wash. 2005), cert.
denied, 126 S. Ct. 2021 (2006) (looking to factors such as the
parties’ mutual decision to have a child and selection of a sperm
donor, the partner’s participation in prenatal care and delivery,
the parties’ choice to give the child a name that reflected both
surnames, the parties’ decision to live together as a family unit
and hold themselves out as a family, the fact that the child
called her mother “Mommy” and the partner “Momma,” and the
parties’ decision to share parenting responsibilities); T.B., 786
A.2d at 914-15 (holding that the partner was a de facto parent
where the parties jointly decided to have a child and thereafter
lived together, the mother named her partner as a guardian over
the child in her will, they engaged in financial planning to
provide for the child, and the partner participated in day-to-day
child rearing responsibilities, such as taking the child to child
care); H.S.H-K., 533 N.W.2d at 421-22 (holding that the partner

37 	Nos. 20040932, 20041031
was a de facto parent where the parties jointly decided to have a
child, the partner was present during prenatal appointments and
delivery, the parties gave the child a name that reflected both
surnames, the partner provided primary financial support, and
both women shared child care responsibilities).
¶81 	Like the above courts, I find a significant amount of
evidence manifesting Barlow’s intent to give parental rights to
Jones. 	Barlow’s actions clearly and convincingly establish that,
up until she and Jones separated, she intended Jones to be her
child’s other parent. 	I therefore would hold that in this case
the intent requirement has been satisfied.
B. 	Creation of an Actual Parent-Child Relationship
¶82 	I now turn to the second part of the de facto parent
test. 	To satisfy this part, the petitioner must prove that he or
she and the child formed an actual parent-child relationship.
Cf. Youmans v. Ramos, 711 N.E.2d 165 (Mass. 1999) (holding that
an aunt was a de facto parent where she and the child had
developed a substantial mother-daughter relationship). 	A
petitioner satisfies this requirement by establishing that
(1) the petitioner lived with and cared for the child on a daily
basis, and as a result (2) the petitioner and the child formed a
parent-child bond.
1. 	Living With and Caring for the Child
¶83 	In order for a third party and a child to develop an
actual parent-child relationship, the third party must have lived
with and cared for the child on a daily basis. 	See V.C., 748
A.2d at 551 (requiring that a petitioner lived in the same
household as the child and assumed obligations of parenthood);
H.S.H-K., 533 N.W.2d at 421 (same). 	There is no minimum period
of time during which a third party must have lived with and cared
for the child. 	It is, however, appropriate for a court to
consider the amount of time during which the third party has
functioned as a parent when determining whether an actual parent-
child relationship has been created. 	See V.C., 748 A.2d at 553.
In other words, the petitioner must have functioned in a parental
role for a long enough period of time to allow a bonded parent-
child relationship to develop. 	Id. 	“How much time is necessary
will turn on the facts of each case,” including the child’s

10 Research indicates that children can begin to form strong
bonds at a very early age. 	See, e.g., Joan B. Kelly & Michael E.
Lamb, Using Child Development Research to Make Appropriate
Custody and Access Decisions for Young Children, 38 Fam. &
Conciliation Cts. Rev. 297, 299 (2000) (“In the attachment phase,
which occurs between 7 and 24 months of age, the child . . .
gives increasingly clear evidence that attachments have been
formed.”). 	Thus, while the child’s age may be relevant in
determining the nature of the relationship, I do not in any way
suggest that a very young child is incapable of forming a bonded
parent-child relationship with a third party.
Nos. 20040932, 20041031 	38
age, 10 developmental stage, and the nature of the relationship.
Id.
¶84 	The care the third party provides to the child during
this time must be equivalent to the care a biological or legal
parent would provide. 	This does not require that the third party
have the exact same relationship with the child or assume the
same responsibilities toward the child as the legal parent.
Rather, it demands that the third party assume the normal
“obligations of parenthood” and do so without the expectation of
financial compensation. 	Id. at 551. 	These obligations include
“taking significant responsibility for the child’s care,
education and development,” H.S.H-K., 533 N.W.2d at 436, and may
or may not include financial contributions to the child and the
household. 	V.C., 748 A.2d at 553. 	As with the other parts of
the de facto parent test, this inquiry is fact sensitive and will
vary with each individual case.
¶85 	Turning to the facts of this case, I believe that Jones
has clearly and convincingly shown that she lived with and cared
for the child on a daily basis. 	Jones lived with Barlow and the
child from the child’s birth until the child was two years old.
During that time, Jones participated in the child’s daily care as
if she were a parent. 	She took her to doctor appointments,
dropped her off at child care, and attended to the child’s daily
personal needs, such as eating and bathing. 	Jones also provided
the child with financial security, not only by providing for the
child in her will and securing a life insurance policy, but also
by contributing to the household expenses.
¶86 	As is the case in most two-parent households, Jones’
parental obligations and responsibilities were not the same as
Barlow’s. 	For example, when the child was an infant, Barlow, as
the nursing mother, nearly always fed the child. 	Likewise,
during the first fifteen months of the child’s life, Barlow
stayed at home while Jones worked. 	As the child grew, the

11 I do not believe it is necessary to establish a definite
period of time after the petitioner moves from the child’s
household in which a petition for visitation must be filed. 	I
recognize, and indeed hope, that parties will often resolve
matters of visitation on their own, without involving the courts.
I also recognize, however, that parties may not be able to
resolve their differences regarding visitation, or that the legal
parent may suddenly terminate visitation with the third party
after that party has enjoyed visitation with the child for months
or even years. 	Setting a limitations period that begins at the
date the petitioner moves from the child’s household would
foreclose a remedy to de facto parents and their children when a
legal parent has agreed to allow visitation but later changes his
or her mind and denies it. 	I therefore would require only that a
petition be filed within a reasonable time after the legal parent
interferes with the relationship between the third party and the
child.
39 	Nos. 20040932, 20041031
parties’ roles evolved accordingly, with Barlow returning to work
and Jones assuming more care-giving responsibilities. 	These
differences, however, do not mean that Jones was not fulfilling a
parental role. 	Indeed, this division of roles is nearly
identical to that frequently found between married men and women
with children. 	Like the district court, I am convinced that
Jones “assumed the obligations of parenthood by taking sufficient
and significant responsibility for the child’s care, upbringing,
future education and well-being . . . without expectation of
financial compensation.”
¶87 	I recognize that Jones’ role had changed by the time
she filed her petition for visitation. 	Barlow and the child had
moved out, and therefore Jones was no longer living with the
child and caring for her on a daily basis. 	This is not
problematic, however. 	Unlike the doctrine of in loco parentis, a
de facto parent need not still be living in the same household as
the child at the time the petition is filed; in fact, it is
highly unlikely that he or she will be. 	The third party need
only petition the court for visitation within a reasonable time
after the legal parent interferes with the third party’s
relationship with the child. 	As a practical matter, this
interference often will not occur until the third party and the
child no longer live together and the legal parent denies
visitation. 11 	In this case, Jones filed her petition within a
reasonable time of Barlow’s interference. 	The parties separated
on November 7, 2003, Barlow denied Jones visitation with the
child later that same month, and Jones filed her complaint on
December 19, 2003. 	Thus, Jones satisfies our requirement that
she lived with and cared for the child on a day-to-day basis.

Nos. 20040932, 20041031 	40
2. 	Actual Parent-Child Bonding
¶88 	In addition to the requirement that a petitioner live
with and care for the child, to prove the existence of an actual
parent-child relationship, the petitioner must show that the
petitioner and the child share “a relationship with deep
emotional bonds such that the child recognizes the person,
independent of the legal form of the relationship, as a parent
from whom they receive daily guidance and nurturance.” 	In re
E.L.M.C., 100 P.3d 546, 559 (Colo. Ct. App. 2004), cert. denied,
2004 Colo. LEXIS 851, cert. denied, 545 U.S. 1111 (2005). 	A
child can form this type of relationship regardless of whether
the potential de facto parent is biologically related to the
child. 	See, e.g., J. Hammond Muench & Martin R. Levy,
Psychological Parentage: 	A Natural Right, 13 Fam. L.Q. 129, 152
(1979) (“[T]he child’s development depends upon the continuity
and character of [the] relationship with the adult he perceives
as his parent, and . . . this perception rather than the fact of
biological parenthood is the basis of their relationship.”
(citation omitted)); Smith v. Org. of Foster Families for
Equality and Reform, 431 U.S. 816, 843 (1977) (“[B]iological
relationships are not [the] exclusive determination of the
existence of a family.”). 	Rather, bonded parent-child
relationships form when children “receive sensitive and
responsive care from familiar adults,” who may or may not be
biologically related, in the course of everyday care--such as
being fed, held, spoken to, played with, soothed, and stimulated.
Joan B. Kelley & Michael E. Lamb, Using Child Development
Research to Make Appropriate Custody and Access Decisions for
Young Children, 38 Fam. & Conciliation Cts. Rev. 297, 298 (2000);
see also Smith, 431 U.S. at 844 (“[T]he importance of the
familial relationship, to the individuals involved and to the
society, stems from the emotional attachments that derive from
the intimacy of daily association, and from the role it plays in
‘promot[ing] a way of life’ through the instruction of children.”
(citation omitted) (alteration in original)). 	In addition,
parent-child bonds develop and grow stronger when the child
spends time in the third party’s general proximity. 	Kelley &
Lamb, supra ¶ 88, at 298.
¶89 	There is ample evidence of an actual parent-child bond
in this case. 	As noted previously, Jones lived with and cared
for the child for the first two years of the child’s life. 	Jones
testified that she felt bonded to the child during this time,
particularly in the mornings when she and the child were alone.
Moreover, as is evident by this lawsuit, Jones seriously wishes
to maintain this relationship. 	I find it persuasive that family

41 	Nos. 20040932, 20041031
and friends testified that the relationship between Jones and the
child mirrored a traditional parent-child relationship. 	The
district judge found the testimony of these witnesses
particularly persuasive because they witnessed this relationship
“in the home at times that were not merely social occasions, but
rather in evenings and early mornings.” 	The child’s pediatrician
echoed these witnesses, testifying that “[i]n the office, both
[Jones and Barlow] seemed to take a very active role in [the
child’s] well-being and be very genuinely interested in how she
was doing.” 	Like the district judge, I find this testimony
“extremely important.”
¶90 	It is undisputed that Barlow also shared a close
mother-daughter relationship with the child. 	Like the district
judge, I believe that Barlow may have had a closer relationship
with the child given that she was the biological and nursing
mother. 	I do not believe, however, that Barlow’s closer
relationship with the child prohibits the child and Jones from
also developing an actual parent-child relationship. 	That the
third party is not the child’s primary caregiver does not imply
that the third party and the child do not share a real parent-
child bond. 	Research has shown that children generally form
attachments to both parents at the same age, usually around six
to seven months. 	Kelly & Lamb, supra ¶ 88, at 300. 	This is true
even where one parent spends more time with the child than the
other, as is the case in the “traditional home.” 	Id. 	Evidence
that Barlow was the child’s primary caregiver does not defeat a
claim of an actual parent-child bond between Jones and the child.
Thus, Jones meets the requirement that she formed an actual
parental bond with the child.
IV. 	THE DE FACTO PARENT DOCTRINE IS CONSTITUTIONAL
¶91 	Finally, my belief that Jones is a de facto parent and
thus entitled to standing is constitutional. 	The Constitution of
the United States, specifically the Due Process Clause of the
Fourteenth Amendment, protects “the fundamental right of parents
to make decisions concerning the care, custody, and control of
their children.” 	Troxel v. Granville, 530 U.S. 57, 66 (2000)
(plurality opinion). 	To protect this fundamental right, parents
are entitled to a presumption that a fit parent acts in the best
interests of his or her child. 	See id. at 68 (“‘The law’s
concept of the family rests on a presumption that parents possess
what a child lacks in maturity, experience, and capacity for
judgment required for making life’s difficult decisions. 	More
important, historically it has recognized that natural bonds of
affection lead parents to act in the best interests of their
children.’” (quoting Parham v. J.R., 442 U.S. 584, 602 (1979))).

12 This case addresses only visitation, and I accordingly
limit my analysis regarding a natural parent’s waiver of the
parental presumption to this context. 	However, some courts have
gone further and recognized parity between de facto and legal
parents, thus enabling de facto parents to take advantage of the
protections offered by the parental presumption. 	See, e.g.,
Carvin v. Britain (In re Parentage of L.B.), 122 P.3d 161, 178
(Wash. 2005) (noting that “the status of de facto parents . . .
places them in parity with biological and adoptive parents” and
gives them a fundamental liberty interest in the care, custody,
and management of the child), cert. denied, 126 S. Ct. 2021
(2006).
Nos. 20040932, 20041031 	42
This presumption cannot be rebutted “simply because a state judge
believes a ‘better’ decision could have been made.” 	Troxel, 530
U.S. at 73.
¶92 	Troxel is the preeminent case addressing a parent’s
fundamental rights in the context of third-party visitation.
Troxel addressed the application of a Washington statute that
allowed “‘any person’” to petition for visitation rights “‘at any
time’” and gave a court the authority to grant visitation if it
“‘serve[d] the best interest of the child.’” 	Id. at 67 (quoting
Wash. Rev. Code § 26.10.160(3) (1994)). 	The plurality held that,
as applied, the statute violated “the fundamental right of
parents to make decisions concerning the care, custody, and
control of their children.” 	Id. at 66-67. 	According to the
plurality, the statute exceeded the bounds of due process because
its breadth allowed any third party to bring a visitation
petition, and it did not afford a parent’s decision any deference
despite the parental presumption. 	Id. at 67-68. 	Rather, the
visitation statute allowed a court to overturn any parent’s
decision regarding visitation based solely on its determination
of the child’s best interest, id. at 67, which was precisely what
the district judge in the case had done, id. at 68-70.
¶93 	However, the de facto parent doctrine does not violate
a parent’s due process rights under Troxel. 	The de facto parent
doctrine is not nearly as broad as the statute at issue in
Troxel. 	It does not grant “any” third party standing, but only
those persons who have satisfied the stringent requirements of de
facto parenthood. 	Moreover, a finding of de facto parent status
does not amount to a judge’s determination that a better decision
could have been made with regard to visitation, but rather, to a
finding that the parental presumption does not apply when a legal
parent creates and fosters a parent-child relationship between
his or her child and a third party. 12 	Also, when a judge makes a
determination that a party is a de facto parent, the judge is

13 Several of the dissenting justices in Troxel indicated
that they would not be opposed to granting visitation to those
that had a substantial relationship with a child. 	530 U.S. at 85
(Stevens, J., dissenting) (noting that in many circumstances it
would be “constitutionally permissible for a court to award some
visitation of a child to a . . . previous caregiver”); id. at 98,
100-01 (Kennedy, J., dissenting) (noting that there may be cases
where a third party “has developed a relationship with a child
which is not necessarily subject to absolute parental veto” and
that “a fit parent’s right vis-a-vis a complete stranger is one
thing; her right vis-a-vis another parent or a de facto parent
may be another”).
43 	Nos. 20040932, 20041031
only determining that the party has standing and is thus entitled
to a hearing on the best interests of the child. 	Thus, the
judge’s decision that a party is a de facto parent is not a
determination of what visitation arrangement is best. 	See T.B.
v. L.R.M., 786 A.2d 913, 919-20 (Pa. 2001) (“A determination of
standing simply implies that the party has a substantial interest
in the subject matter of the litigation and . . . does not speak
to [a third party’s] chance of success on the merits.”).
¶94 	Moreover, nothing in Troxel suggests that the
Fourteenth Amendment prohibits third-party visitation in all
contexts or always requires a rebuttal of the parental
presumption. 	In fact, the Troxel plurality specifically limited
its holding to the “sweeping breadth” of the Washington statute,
noting that it had not considered whether the Due Process Clause
always requires a showing of harm as a prerequisite to third-
party visitation. 	530 U.S. at 73. 	The Court also stated that it
was not defining “the precise scope of the parental due process
right in the visitation context.” 13 	Id.
¶95 	Therefore, I do not believe that the Due Process Clause
is violated under Troxel when a judge grants a de facto parent
standing in a visitation matter. 	I recognize that a parent has a
right to make decisions regarding the upbringing of his or her
child. 	However, a parent exercises this right when he or she
invites a third party to form a parental relationship with his or
her child and thereafter actively fosters the relationship. 	By
incorporating the legal parent’s intent into our de facto parent
test, I am giving deference to the legal parent’s decisions.
However, once a legal parent exercises this right and creates a
de facto parent relationship between the child and another, the
legal parent has a reduced expectation of privacy and autonomy.
A parent who encourages the formation of such a relationship
cannot later unilaterally sever the connection or complain that a
court has violated his or her rights by protecting the

14 See, e.g., In re E.L.M.C., 100 P.3d 546, 557, 562 (Colo.
Ct. App. 2004) (rejecting the assertion that a parent must be
found unfit under Troxel and upholding trial court’s order
granting a partner equal parenting responsibilities based on a
psychological parent theory because it was more than a judge’s
“better decision” as to best interests), cert. denied, 2004 Colo.
LEXIS 851, cert. denied, 545 U.S. 1111 (2005); Rideout v.
Riendeau, 761 A.2d 291, 303 (Me. 2000) (“[W]here the grandparents
have acted as the children’s parents for significant periods of
time, [Maine’s] Grandparent Visitation Act serves a compelling
state interest in addressing the children’s relationship with the
people who have cared for them as parents . . . [and the Act] may
be applied . . . without violating the constitutional rights of
the parents.”); V.C., 748 A.2d at 554 (noting that where a parent
has invited another to be a de facto parent and thereby “altered
her child’s life by essentially giving him or her another parent,
the legal parent’s options are constrained”); Rubano v. DiCenzo,
759 A.2d 959, 974 (R.I. 2000) (finding that lower court’s
enforcement of a visitation agreement between the natural parent
and the de facto parent did not violate the Due Process Clause
because there are circumstances where “even the existence of a
developed biological, parent-child relationship . . . will not
prevent others from acquiring parental rights vis-a-vis the
child”).
Nos. 20040932, 20041031 	44
relationship. 	As the New Jersey Supreme Court explained in V.C.
v. M.J.B.:
[A] parent has the absolute ability to
maintain a zone of autonomous privacy for
herself and her child. 	However, if she
wishes to maintain that zone of privacy she
cannot invite a third party to function as a
parent to her child and cannot cede over to
that third party parental authority the
exercise of which may create a profound bond
with the child.
748 A.2d 539, 552 (N.J. 2000), cert. denied, 531 U.S. 926 (2000).
¶96 	This approach is consistent with post-Troxel decisions
that have granted third parties standing where the third party
has a substantial relationship with the child. 14 	For instance,
this court determined that Utah’s grandparent visitation statute
was constitutional and upheld a grant of visitation, against the
father’s objection, where the maternal grandparents had lived
with the child and interacted with her on a daily basis prior to
the death of the child’s mother. 	Uzelac v. Thurgood (In re

45 	Nos. 20040932, 20041031
Estate of S.T.T.), 2006 UT 46, ¶¶ 1-4, 144 P.3d 1083. 	As
recognized in S.T.T., when a family is divided by events such as
divorce, “a situation may arise where the child’s interests
differ from those of the parent.” 	Id. ¶ 30. 	The de facto parent
test would “provide[] guidance to courts in determining whether
the petitioning [third party] ha[s] established circumstances
under which the courts can, nevertheless, supersede the parent’s
decision,” just as courts may do when the third party seeking
visitation is a grandparent. 	Id. ¶ 35. 	As this court has
previously recognized, situations exist in which visitation with
a third party may be in the best interests of a child despite the
legal parent’s objections, and like Utah’s grandparent visitation
statute, the de facto parent test would, I believe, survive
constitutional scrutiny.
¶97 	In conclusion, the recognition of de facto parenthood
would not infringe upon the general right of parents to raise
their children in the manner they deem appropriate. 	Rather, de
facto parenthood addresses only the specific circumstances that
arise when a parent consents to and fosters a de facto parent
relationship between the parent’s child and another party. 	It
merely recognizes that when a parent encourages another to form a
de facto parent relationship with a child, the parent and the
third party are not the only parties affected by the decision.
There is another interested party: the child. 	In these
situations, in order to properly address the best interests of
the child, it is appropriate to grant the de facto parent
standing.
¶98 	I therefore conclude that under Utah common law, de
facto parents should have standing to seek visitation, despite
the objections of a biological or legal parent. 	De facto
parenthood recognizes that when a natural parent fosters such a
relationship, the child is also affected and ought to be
protected from losing a relationship with someone who is, as far
as the child is concerned, a parent.
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