In California, Children Can Have More Than 2 Parents
After a convoluted case in which a lesbian couple and a biological father all claimed parental rights to a child made its way through the state’s courts, California has passed a law allowing children to have more than two legal parents.
The child’s mother was legally married to another woman, and their tumultuous relationship included domestic violence, drug abuse, and even prison time. After the women broke up, according to one account of the case, the mother, Melissa, slept with a man named Jesus and got pregnant.
Melissa left Jesus and reconciled with her partner, Irene, while still pregnant. As a result, only Melissa was listed on M.C.’s birth certificate, and Jesus never obtained parental rights: The couple rebuffed Jesus’s attempt to contact them about M.C. once she was born.
After the women split again, Melissa’s new boyfriend, at her instigation, stabbed Irene, resulting in Melissa’s incarceration for attempted murder. M.C. was placed in foster care, and then all three “parents” – Melissa, Irene, and Jesus – sought custody.
The Evolving Family
Despite longstanding precedent in California that a child can only have two parents, the juvenile court thought it was in M.C.’s best interest to have all three recognized as her parents, under various other state laws: Melissa, because she is the biological mother; Irene, because as Melissa’s spouse at the time of M.C.’s birth, she is the presumed mother; and Jesus, because as the biological father he attempted to establish a relationship with M.C.
An appellate court, however, reversed the decision, based on the two-parent precedent, sending the case back to trial for a determination of whether Irene or Jesus had a stronger claim as the second parent. The appellate court also said the legislature would need to act to correct the law.
And it did, with Gov. Brown signing S.B. 274 into law on Oct. 4. The law says that resolving competing claims is unnecessary if a court finds that recognizing only two parents would be detrimental to the child.
“The California law is groundbreaking, but I would not call it that surprising,” observes says Bari Weinberger, a family lawyer with the Weinberger Law Group in Parsippany, N.J. “It simply addresses the reality of what is happening in our society as the meaning of ‘family’ evolves.”
“There have been a few cases in other states where courts have decided that more than two people should be recognized as a child’s parents,” Weinberger says. “Still, the two parent rule remains the most common standard, and it is important to understand that in most cases a child will still have only two parents, even in California.”
Weinberger notes that the underlying case would have been the same had the couple involved been heterosexual, and that the difficulties faced by all the adults created a situation in which the juvenile court was clearly trying to protect the child.
“The fact that it involved a same-sex couple is interesting in light of all the recent legal debate and the Supreme Court cases about same-sex marriages, and that probably was part of the impetus for the law, but the case did not hinge on the existence of a same-sex relationship,” she says.
A law like California’s has benefits and drawbacks. “In a situation where a presumed parent has stepped up and wants to be responsible for a child who might otherwise end up in foster care, or in a less favorable placement, this law clearly provides a benefit,” Weinberger explains.
“A possible drawback would be increased confusion in an area of law where a lot of confusion already exists,” she adds. “There is also a risk that if more people have a right to request custody of a child, there will be more conflict. But we have to accept that things are in flux right now and some confusion may be inevitable while the law adjusts to the reality of the times we are living in.”
More Changes to Come
In some states, like New Jersey, legal mechanisms already exist to allow third parties to be granted limited parenting rights when the child has been supported by an adult with whom she has formed psychological bonds.
“If the New Jersey legislature were to pass a law like this new California law, it would expand parental rights, but only in unusual situations, and only when the needs of a child call for it,” Weinberger says.
“I think we need to keep in mind that most of our current laws were written before reproductive technology became so commonplace, before accurate genetic testing was available, and before same-sex marriages began to be widely recognized, so as these changes occur, laws need to be amended to keep pace,” Weinberger says.
“This is just one change in the law out of many that we have seen and are going to continue to see as courts and legislatures work to make necessary adjustments.”