British gay activists urge both marriage for same-sex couples and civil partnerships for different-sex couples

Gay activists in Britain are urging William and Kate to announce their support for marriage for same-sex couples. But at the same time they are advocating access to civil partnership for different-sex couples. At the moment, only same-sex couples can enter civil partnerships. Truncated news coverage has described the marriage equality plea without noting that advocates also back different-sex civil partnerships.

Although recent civil union legislation in Illinois and Hawaii both allow access for different-sex partners, Delaware's bill, which awaits the governor's signature, extends civil union status to same-sex couples only. Newspaper coverage noted than an effort to add different-sex couples was seen as an attempt to "undermine" the bill. That's a way of thinking that I do not follow. What civil union for different-sex couples undermines is the preservation of marriage as the one and only way straight people can announce their commitment. We are more likely to get to a greater recognition of the many ways that people form relationships that matter if we knock marriage off its pedestal. Given straight people options other than marriage is one step in that direction.

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.

Delaware legislature gets it right on children with two moms

A mere six months ago I chastised the Delaware Supreme Court for denying de facto parent status to a lesbian mom who had not adopted a child although she and the child's adoptive mother had planned for and raised the child together.

Well, the Delaware legislature has stepped up BIG. It passed a statute creating de facto parent status when the de facto parent:

(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child as that term is defined in § 1101 of this title; and
(3) Has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.

("Parental responsibility" is defined as "the care, support and control of the child in a manner that provides for the child's necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child.")

When a person meets this criteria, she is a legal parent, on par for all purposes with a woman who gives birth to or adopts a child.

The law went into effect July 6, but the law is retroactive, and any cases decided against a legally unrecognized mom under previous law can be reopened. The statute says both those things explicitly.

There is so much that is huge about this statute. Legal parentage has nothing to do with recognizing the couple's relationship to each other, so parentage created this way is not vulnerable to a DOMA challenge. It is full parental status, so that means everything -- not just the custody/visitation/support rights and responsibilites that some courts have extended to a nonbio (or non-adoptive) mom. For example, it means entitlement to government benefits as the child of both parents and the right to inherit from and through both parents. Also, most states have not given EQUAL custody rights to a nonbio mom, and this statute makes clear they are equal.

There are a couple of caveats. The statute probably does not recognize both parents until after the child was born, even if the couple consented to insemination together and fully planned for the child together. Also, it is not clear to me that the second mom can go on the birth certificate, and without that some court proceeding might be necessary, which is a drag. Still, what a great improvement on current law.

Last year, the highest court in Maryland got this issue all wrong. I hope Delaware's legislative response inspires the next session of the Maryland legislature to follow suit.