In Re Custody Of B.M.H.

315 P.3d 470 (2013)

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Nature of the Case

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Facts

W and H began a romantic relationship in 1993 and had a son, C.H., in 1995. The couple separated in 1998, without having married. W became engaged to another man. That man died in an industrial accident in 1999 while she was three months pregnant with his biological child, B.M.H. H provided significant emotional support and was present at B.M.H.'s birth, and even cut B.M.H.'s umbilical cord. H and W married shortly after B.M.H.'s birth but divorced in 2001. H was actively involved in B.M.H.'s life. In 2002, W changed B.M.H.'s last name from the biological father's last name to H's last name. They discussed H's adopting B.M.H. in 2007, but it was not pursued because of the effect it might have on the survivor benefits that B.M.H. receives by virtue of his biological father's death. W married another man in 2007 but divorced in 2008. H claims that W started to separate B.M.H. from H's visitations with C.H. In the summer of 2009, C.H. moved in with H. On February 23, 2010, H filed a nonparental custody petition, alleging that W was not a suitable custodian for B.M.H. H also asked the court to find that he was B.M.H.'s de facto parent. The court first found that H had established a prima facie case for de facto parentage. After two additional hearings, the trial court granted W's revision motion and dismissed H's de facto parentage action. Case law excluded H from asserting a de facto parentage cause of action based on his former marriage to W and the filing of a nonparental custody action.