Saturday, August 15, 2009

More thoughts on the Delaware de facto parent law -- a child can have three parents

I failed to note in my last post an unusual and important aspect of Delaware's new statute creating parentage in a person who qualifies as a "de facto" parent:
This is a statute that explicitly authorizes three parents (or more) for a child.

The statutory interpretation is easy. A "de facto" parent must satisfy the criteria (check my last post for these). The first criterion is "has had the support and consent of the child's parent or parents..." So a child can already have two parents. Both those parents must consent to and foster a parental relationship between the child and another person. That person then satisfies the remaining statutory criteria, and, voila, the child has three legal parents.

The entire subject of more-than-two parents is severely untheorized, and the law in this area is profoundly underdeveloped. When you consider the number of children whose parents divorce and then couple with other partners, there are many, many children with more than two parental figures. The standard course, however, is that for a step-parent to become a legal parent that person must adopt the child and for that to happen the noncustodial parent must consent to termination of his/her parental rights.

There are a handful of court decisions allocating the rights and responsibilities of parentage among more than two parents, including a few states in which trial courts have granted third parent adoption decrees to the partner of the biological mother when the semen donor is also a functional (and legal) parent. But those are the exception.

When I was in Australia earlier this year, I spent some time with a family of four parents...the bio mom, her partner, the semen donor/bio dad, and his partner. The women are the primary parents. The men are secondary parents. The child is seven years old, and the relationships have been stable throughout his life. Australia's parentage reforms of the past year do not allow for even three parents, let alone four.

Our recent DC statute does allow for the possibility that by written agreement a woman who consents to her partner's insemination with the intent to parent is a parent and the semen donor who agrees with the mothers to be a parent is also a parent, so a child could have three parents under that scenario. We don't have a mechanism for creating a birth certificate with three parents, so for sure a court will have to be involved. I'll be interested to see how soon that happens.

The Delaware statute appears to require Family Court action to create (or at least officially recognize) the parentage of a de facto parent. Once a de facto parent obtains a parentage order, that person is a parent. So then, assuming this is a lesbian couple, the couple can participate in the creation of a third parent for the child, and this has nothing to do with semen donors or biology...just with meeting the criteria for being a de facto parent.

I think if my friends in Australia actually lived in Delaware they could get parentage orders creating four parents for their child at this point. They certainly all meet the criteria.

Of course the Delaware statute isn't just for same-sex couples and our families. And since there are way more heterosexual families, I wouldn't be surprised if the first three-legal-parents family in Delaware is a divorced couple and a step-parent -- all by consent. After the stepparent has a bonded parental relationship with the child for a sufficient period of time, and with the agreement of both the child's legal parents, a court should issue a parentage order to the step-parent. It does happen that post-divorce family configurations actually work well enough for such an arrangement to be appropriate --- to be the matching of legal parentage to all the child's emotional parental relationships.

It's a matter of time. Delaware has a small population, so it could be awhile. I'll be trying to pay attention to how its law develops. Maybe we're looking at a new model for the rest of the country.

6 comments:

Diane said...

You are in denial if you think that all of this is good for kids. If you think that rotating sex partners over a lifetime is OK and is the same as a kid being raised by their mom and dad, you are just silly. And news flash...societal acceptance of disordered sex is not a civil right.

Annie said...

Interesting stuff. I appreciate the write-up and intend to have a further look around the blog. I think that there are plenty of cases where this is helpful, even necessary. Eg a child lives with mother and stepfather, and father is very active in their life, but so is stepfather. Why should the father have to give up parental rights for the child to be adopted by the stepfather?
(Diane, perhaps you should think about those circumstances, and the sorts mentioned in the post, rather than jumping to the conclusion of kids somehow instantly getting a new guardian every time their parent has sex with someone.)

Diane said...

What happens is that the kids' get a bird's eye view of their parents busy sex lives, which absolutely destabalizes their life. This stuff written about in the article simply tries to legitimize all of that,no matter how you cut it.
Society is worse off today due to all of this changing of sex partners and the broken homes and the ills that come with it are proof.

George said...

It is bizarre and stupid decision.
De facto parenthood creates a new kind of "extended family" for children, one in which three, four, or more adults may have status as one type or another of rights-holding parent. As such, the concept deserves careful scrutiny-at first, as here, on its own terms and later in the full context of the contentious public debate over the extent to which traditional family structures must yield to new policy priorities and empirical understandings.

Most crucially, absent clear evidence of a "primarily" financial motive, anyone who shared the same household with a biological parent and her child for a period longer than two years would almost certainly be able to threaten a suit for partial custody that would survive a motion to dismiss, or even summary judgment. The necessary vagueness in the description of many of the "care taking functions,"combined with the vagaries of witnesses and judges, would force any such biological parent to take the threat of such litigation very seriously.

. It is noteworthy that, in contrast to parents by estoppel, who must show that they assumed a parental role pursuant to an agreement with both legal parents (if there are
two),52 de facto claimants need only show the consent of one. Further, that agreement, according to the comment, "may be implied by the circumstances," and the requirement is meant only to screen out relationships that arise "by accident, in secrecy, or as a result of improper behavior.
Likewise, for the biological parent who does not have primary custody of a child while the child's other biological parent is living with a new partner, a claim for de facto parental status by the stepparent or partner will carry severe risks of diminished access to the child.

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