The law enables adoption beyond two parents by stating that if the existing parents agree in writing, then an adoption can take place without terminating the rights of those existing parents. The most common scenario of this sort for LGBT parents has been one in which all concerned want both the known donor and the birth mother's female partner to be legal parents of the child. This statutory authorization, however, is most likely to impact heterosexuals, given how much divorce and remarriage there is. The provision will mean that if both the custodial and the noncustodial parent agree, then the custodial parent's new husband will be able to adopt the child without terminating the rights of the noncustodial parent. I have been advocating such a possibility for years, but this is the first law explicitly sanctioning such arrangements. The divorce rate of second marriages is at least as high as that of first marriages, which means that down the road we will be looking at multiple parent custody and visitation arrangements on a regular basis.
Among LGBT families, I expect to see four parent adoptions as well. If a gay male couple and a lesbian couple want to raise a child, the new statute will allow the partners of both biological parents to become adoptive parents. It remains to be seen what evidence of stability a court will require before giving a child four parents with equal legal claims in the event of dissolution. It's also an open question whether courts will, or even should, be more vigilant about later addition of parents than they are about more than two people setting out to parent a child at the outset.
A court grants an adoption based on a child's best interests. But there is more to the new law than the availability of adding parents through adoption. California creates presumption of parentage under numerous circumstances. Living with a child and holding her out as one's own is one such presumption, and it was the basis for finding parentage of the nonbiological mother in the pathbreaking Elisa B. case. Marriage to the woman who gives birth to the child also creates a parentage presumption. The M.C. court found that a child's biological father and her biological mother's wife were both presumed parents (in addition to the mother of course) but that the child could not have three parents under existing law. The trial judge had found that the child had three parents, and the new law makes that result possible going forward.
But here the standard is something other than best interests. The court must find that limiting the child to two parents would be detrimental to the child. In determining detriment, the court is to consider
the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.Detriment does not require finding anyone involved unfit. As I read this language, in advance of any court interpretation (which will come soon enough given family litigation in California!), this standard will favor a functional parent, and if additional parentage is sought by someone who has not functioned as a parent, that person may well be unable to prove detriment. That sounds like a good call to me, but we'll have to wait and see how this standard plays out in practice.
Kudos to NCLR and all who worked on this bill!
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