Is Three Really a Crowd? Expanding the Number of Legal Parents.
By Debra M. Finch, Debra M. Finch, P.C.
Should children have more than two
legal parents? Most states, including
Georgia, recognize only two legal parents: a mother and a father. But as non-traditional
families become more and more prevalent, legislatures and courts in some
states, such as California, have expanded parentage to include three parents
and, in some cases, even four.
The desire to expand the number of
legal parents often arises in the context of same-sex relationships where there
may be a legal mother and a biological father, along with a non-legal/non-biological
partner who serves as a “functional parent”, co-parenting the child and
supporting the child emotionally, financially and socially. By awarding legal
recognition to a functional co-parent, proponents argue that it lessens
disruption of that relationship in the child’s life in the event the legal
parent(s) become unavailable to care for the child.
Legislation in California
expanding the number of legal parents was introduced after a California juvenile
court ruled that a child had three legal parents: the married lesbian couple
who was raising her and the child’s father.
The California case arose when one of the
lesbian mothers was hospitalized and the other was jailed. The child was placed
in foster care and the child’s father petitioned for custody, which was denied
by the Department of Family and Children’s Services, ruling that a child could
have only two legal parents (the married lesbian couple) and could not have a
third (the father) under California law.
The juvenile court, however, disagreed,
ruling that the child had three presumed parents: the child's biological mother, the
child’s presumed mother because she and the child's biological mother were
married when the child was born, and the child's presumed father who promptly
came forward and demonstrated his commitment to his parental responsibilities. The California
appellate court, however, reversed the juvenile court’s decision in IN RE: M.C., prompting the introduction
of legislation granting recognition of more than two legal parents.
In an amicus curaie brief filed by the Children’s Advocacy Institute in IN RE: M.C., the group stated:
“Given
the complexity of so many relationships through which children are brought into
this world, it would not serve the best interests of children to broadly declare
that no more than two adults are entitled to parental rights vis-à-vis any one child. In addition to
unfairly requiring a court to cancel out the rights of a person who has
otherwise met one of the legal thresholds for establishing parental rights,
such a holding would detrimentally impact the ability of children to form and
cultivate relationships with their own family members (biological or
otherwise). Courts must be allowed flexibility to consider the unique factual
circumstances presented in each case, and to recognize and respect the rights
of all such individuals who can establish a legally cognizable parental
relationship to a child.”
The desire to expand parentage to
include a third parent is not limited to situations involving same-sex couples.
It also comes up in the context of heterosexual couples, such as when a stepparent
seeks to adopt his spouse’s child from a previous marriage.
A traditional stepparent adoption
may not be an option, particularly when the child has some relationship with the
non-custodial legal parent. A
stepparent adoption typically involves termination of parental rights, which is
often an issue that involves litigation. If an option existed which allowed for
adoption (or the recognition of the stepparent as a legal parent) without the
termination of the non-custodial legal parent’s parental rights, it might
satisfy all concerned without the need for litigation.
Such an approach might also offer
the child some protections in the event of the death of the stepparent’s spouse. Under current Georgia law, when a
custodial legal parent dies, physical custody is typically transferred or
assumed by the non-custodial legal parent and the decedent's spouse has no rights to the child. In situations where a legal non-custodial parent
has been largely absent from a child’s life, a sudden disruption of the child’s
relationship with a stepparent who has functioned in a parental role may not be
in the best interests of the child.
Opponents of allowing more than
two legal parents argue that such an expansion will cause more chaos and
conflict in the event of the dissolution of the partnership/marriage because
custody, visitation and support issues must be determined between three or more parents,
instead of the traditional two parents. Additionally, expanding parentage would
also expand other areas of the law, such as intestate succession.
Cases in which courts have awarded
parenting time to a functional non-legal parent seem to turn on the intent of
the parties in establishing the functional parent’s relationship with the child
and the best interests of the child, recognizing that best interest may not
always be determined by a child’s DNA. Legislatures and courts will likely
employ a similar analysis in determining whether to expand the number of
legal parents.
The definition of a parent has
changed dramatically in the last ten years. There seems to be recognition by
some courts and some legislatures that a non-legal parent’s involvement in a
child’s life is a significant factor to be considered when determining the
child’s best interests. As the
traditional view of parentage broadens, we will likely see more courts and
legislatures addressing the issue of whether a child can have more than two
legal parents.
