Saturday, July 14, 2012

Where can a child have three parents?

Today's newspapers and websites are full of stories about the California bill that will allow a judge to find that a child has three parents. (Check out the New York Times for example).  Every story I read contains something that is misleading or plain wrong about the state of the law.  So I thought I would briefly try to set the record straight.  Mind you, I am not criticizing the journalists who wrote these pieces, as this area is complex and can be very hard to explain.  But I'm going to give it a try.

The first time I ever found a case assigning parental responsibilities and giving parental rights to more than two parents was in Louisiana in the 1980's.  Yes Louisiana.  There was nothing gay about it.  A married woman gave birth to a child and the biological father was not her husband.  The child had a relationship with both men and the court said there were two fathers. (If you are familiar with the US Supreme Court's ruling in Michael H. v. Gerald D., this might suprise you.  That case held that a state was not required to give parental status to a biological father of a child born to a woman married to a different man, and was certainly not required to say a child could have two fathers.  But it didn't prohibit a state from doing either of those things.)

More recently, and in the gay and lesbian context, here is what I can report.  California, Oregon, Washington, Massachusetts, and Alaska have allowed third-parent adoption, whereby neither biological parent relinquishes parental rights but the partner of one of those parents becomes a legal parent through adoption.  In fact, one of the first "second-parent" adoptions in the country, in Alaska in 1985, was actually a third-parent adoption.

The District of Columbia parentage statutes assign parentage to a person who consents to a woman's insemination.  A semen donor can also be a parent, but only if there is a written agreement to that effect.  So, when all three individuals document in writing that they are conceiving a child that all will parent, the child can have three parents.  (Read here for more about this law).  In addition, DC has a "de facto parent" statute that defines when a person who is not a legal parent can nonetheless obtain custody and visitation and have an obligation to pay child support on an equal basis with the legal parents.  If the child has two legal parents, this can create a third person with some of the rights of parenthood.

Delaware defines a "de facto parent" and makes that person a legal parent.  I have written about this here.  Therefore a child can have three parents in Delaware.

There are a few other cases I know of in the gay/lesbian context where the court has recognized the semen donor and the two moms in some configuration.  A Minnesota case gave visitation rights to both the nonbio mom and the semen donor.  A Pennsylvania case required both the (involved) semen donor and the non bio mom to pay child support.  This does not necessarily make the individuals full parents for all purposes.

Although creating something short of legal parentage, it's worth mentioning post-adoption contact agreements (PACA) which are permitted in a growing number of states -- maybe half at this point. They allow a parent to relinquish a child for adoption but retain legal enforceable visitation rights, assuming that visitation remains in the child's best interests.  This idea grew out of the child welfare context, where a child in state custody because of abuse or neglect might face indefinite foster care unless the rights of his/her parents were terminated.  Older children might not want to lose all contact with a parent, and a parent who might not be proven entirely unfit might not want to lose all contact with her child.  If contact can continue, all involved might agree to an adoption.  In that case the child has only two parents -- the adoptive ones, but the biological parent retains a legal connection through visitation.  It's not three parents, but it's some recognition of the reality of complex family life.  And I have written about how a law such as this can allow a lesbian couple and a known donor to structure their relationships so that he consents to a second parent adoption but retains legally enforceable visitation.  This kind of arrangement has appeal for those families planned around the idea that the child will have two mothers but the donor will have ongoing contact but not legal parentage.  I might add that this arrangement works when the child is conceived through sexual intercourse as well.  It simply requires the three individuals to agree that this is what they want.

Finally, to return to the California bill, the legislative proposal arose after a California appeals court ruled that a child could not have three parents.  I wrote about that case, In re M.C., extensively here.  The court could have found that the child in that case did not have three parents without pronouncing in such a sweeping way that a child could never have three parents.  Given the sweeping language, the bill is necessary to protect parent-child relationships when there really are more than two people who function as the child's parents.


Diane said...

When you write, "California, Oregon, Washington, Massachusetts, and Alaska have allowed third-parent adoption..." you mean that individual judges/courts in those states have granted third-parent adoptions, correct? I am not aware of any decisions with state-wide applicability to that effect (but I'd love to be wrong).

Nancy Polikoff said...

No, you are correct about that. All trial court rulings.

Anonymous said...

Seems like British Columbia has already passed a similar law, set to go into effect next year. I know you wrote about this when it was first proposed. See here for a page on passage of the overall Act; and the Parentage section for specifics: "A donor cannot be declared a parent by virtue of the donation, even though there is a genetic link between the child and the donor. There is an exception to the general rule that a donor is not a parent if the donor and the people who would be the child’s parents (i.e., birth mother and her partner) agree before the child’s conception that all three will be the parents of the resulting child."