Is Three Really a Crowd? Expanding the Number of Legal Parents.

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.