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United States: Delaware Supreme Court Holds That Same-Sex Partner Lacks Standing to Seek Child Custody

(Feb. 26, 2009) The Delaware Supreme Court, on February 3, 2009, rejected the claim of a woman seeking custody of a child she had helped care for while in a same-sex relationship.

Lacey Smith and Charlene Gordon were involved romantically and decided to adopt a child from Kazakhstan. Because Kazakhstan forbade adoption by single-sex couples, Smith alone adopted the child. Gordon contemplated adopting the child as well but never initiated the procedure. She did take adoption leave, enrolled the child as a dependent in her medical coverage and shared care expenses. After Smith and Gordon broke up, Gordon brought an action seeking visitation rights with the adoptive child as a legal parent or “de facto” parent under Delaware's uniform parentage law. The family court found that Gordon was a de facto parent, ruled that she had standing to seek custody, and awarded joint custody. Smith appealed from this ruling, arguing that such de facto parents lack standing.

The Delaware Supreme Court held that Gordon's relationship with the child did not meet the legal parent-child relationship under Delaware law. As for “de facto” parenthood, the Court held that Delaware law did not allow for such a relationship. The Court noted that de facto parenthood had been embraced by other states and by the American Law Institute, but observed that Delaware law specifically defined a parent-child relationship as a “legal relationship,” and the Court was unwilling to recognize a “de facto” relationship where the legislature had not created one. Without any recognized parent-child relationship, it determined that Gordon lacked standing to seek custody. (Smith v. Gordon, No. 94, 2008 (Del. Feb. 4, 2009), available at