Three parents (or more) okay in California -- by adoption or otherwise

Over three years ago I described in this blog, In re M.C., a California appeals court ruling that a child could not have three parents.  The case mobilized the National Center for Lesbian Rights and other advocacy groups, and yesterday California Governor Jerry Brown signed a bill explicitly permitting more than two parents, by adoption or by operation of California parentage laws.  No other state has such statutes, although lawyers do report some state trial courts that allow third parent adoption, and there are a tiny number of appeals court cases that have allocated parental rights and responsibilities among more than two parents.  I wrote about some examples here.

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!

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.

Big victory for lesbian moms in New Mexico parentage case

In a unanimous opinion, the New Mexico Supreme Court ruled today in Chatterjee v. King that a nonbiological, nonadoptive mother has standing to pursue joint custody of her child. In 2010, I wrote here about the Court of Appeals ruling that Bani Chatterjee could not pursue custody of her child; that decision was reversed today.  To briefly recount the alleged facts, Chatterjee and her former partner, Taya King, began their committed relationship in 1993.  In 2000, they travelled to Russia, where King adopted a child who was intended to be the child of both of them.  The couple lived with the child and co-parented her as two mothers until 2008, and the child had a last name combining both women's names.  When their relationship ended, King moved away and prevented the child from seeing Chatterjee.

New Mexico has a version of the Uniform Parentage Act that creates a presumption of parentage for a man who holds a child out as his own, and that allows a woman to establish maternity in any way a father can establish paternity when that is "practicable."  The court accepted as the definition of "practicable" something that is "reasonably capable of being accomplished."  Because it is practicable for a woman to hold a child out as her own, that method of establishing presumed parentage is available to a woman.  The court also noted, I am happy to say, that a contrary ruling might be unconstitutional sex discrimination, something I have long believed.  The court specifically said that a contrary ruling would allow a man in a same-sex relationship to establish his parentage based on "holding out," but not a woman in a same-sex relationship.

The court cited decisions from several other states that have interpreted similar provisons of their UPA, including California and Colorado, which I wrote about here. It also cited an Oregon case, which I wrote about here, because that case applied a statutory presumption of a man's parentage if he consents to his wife's insemination to a claim by a lesbian ex-partner based on her consent to her partner's insemination.

The court also found its reasoning consistent with public policy.  A child has no less need for love and support, it ruled, just because her second parent is also a woman; attachment bonds exist regardless of biological or legal connection; and "the law needs to address traditional expectations in light of current realities to keep up with the changing demographic of American families and to protect children born into them."

Finally, the court made clear that although there is a parental preference in determining custody, that does not apply between two parents.  Therefore it does not apply here.

To be clear about the status of this case, Chatterjee's complaint alleged facts sufficient to show her presumed parentage, but because her case was dismissed she has not yet been required to prove those facts at a trial.  Unless the parties reach an agreement on custody, that will be Chatterjee's next step.

One Justice wrote a concurring opinion.  He agreed that Chatterjee's allegations made her a presumed parent but sought to limit the reach of the case to prevent someone coming into a child's life at a much later date, and not recognized as a parent by the child's and the child's family, from claiming presumed parentage.  His concern was based entirely on the scenario of a man entering the picture, living with a woman and her children, and later claiming parentage and asking for custody (or having parentage claimed against his by the mother seeking child support).

Finally, a note on current New Mexico law. The state has adopted a new UPA since the one in effect when Chatterjee filed.  Now a person claiming "holding out" parentage must live with the child during the first two years of the child's life.  Chatterjee could meet that standard, as could all couples who plan for a child together and stay together until the child is two.  If the couple splits up before that time, the partner who did not give birth to or adopt the child may face an obstacle to maintianing parentage.  BUT, and this is HUGE, the recent New Mexico UPA also states that a person (gender and marital status-neutral) who consents to a woman's insemination with the intent to be a parent is a parent.  So for children conceived through donor insemination, the nonbio mom will not need to rely on the "holding out" provision and will not need to worry about the meaning of the two-yea requirement.  Rather, she will be a parent from the moment the child is born (conceived, really).  The fact that the New Mexico Supreme Court interpreted the words of the UPA according to their plain meaning removes all doubt that it will do the same if asked to determine whether the donor insemination provision really creates parentage for both women in a lesbian couple.

Congratuloations to New Mexico attorney Lynn Perls and Shannon Minter and Cathy Sakimura at the National Center for Lesbian Rights for a huge win!

NY Times highlights family trees complicated by assisted reproduction

It's shaping up to be a banner week for the New York Times attention to LGBT families. Yesterday's paper edition included a front page article, "Who's on the Family Tree? Now It's Complicated."

Jennifer Williams, a lesbian, gives birth to a child, Mallory, using donor sperm, so that her sister and brother-in-law, who could not conceive, can adopt the child. Williams has a partner and also has her own biological child, conceived with a donor. The children are legal cousins and biological half-siblings. Where do they fit on a family tree? (Answer: They're cousins, but at home sometimes the six year old calls Mallory his sister).

Other examples: a lesbian couple in which the nonbio mom adopted the children born to her partner, conceived with a known donor who wanted the children to know who he was. The donor, who was 45 when the children were conceived, has two biological children and two stepchildren. One mom speaks of the family having a "triple family tree." And a heterosexual couple with a biological child, a child conceived with donor sperm, and two adopted children. Their family tree ignores biology, although they have a separate set of baby books that include, for example, "donor siblings," the term the couple uses for other children born with sperm from the same donor.

The article cites some examples of how schools deal with these types of family trees. Examples: some schools skip family trees; some have children write stories about family history instead. There are also new kinds of family trees, with circles, sqaures, dotted lines, straight lines, and no lines.

This article fits well with my post yesterday, which included reference to sociologist Judith Stacey's new book, Unhitched. She describes numerous complex parenting arrangements by the gay men she studied.

One thing the article doesn't say is that these complex families have existed for at least decades. It's just that no one talked about it. My own research has uncovered numerous medical and legal articles about what was then called "artificial insemination" in the 1930's and 40's and later. The authors uniformly agreed that secrecy was the way to go. (They also agreed that the woman's husband was not really the child's legal father without an adoption, but that, given the secrecy, no one would know this to challenge it. I'm working on an article exploring this fascinating history). And I've seen research estimating that from 2% to 4% of children are not the biological child of the man they think is their father, presumably largely as a result of their mother's affair with another man.

There may be a quantitative difference now, but mostly there's a difference in openness. Same-sex couples can't pretend, and different-sex couples may be less inclined to do so. The article says that a new standard birth certificate questionnaire (still being phased in) asks about whether and what type of reproductive technology was used in conceiving the child. If parents are required to provide these answers (the questionnaire is not usually publicly available; it's used for data collection, with a large focus to date on prenatal care and other demographic information about the mother), it will vastly increase what we know about the difference between biological and legal parentage. (Right now no data is collected on donor insemination; if you see a statistic about the total number of children conceived in that way, it's at best an educated guess. Data is maintained on more invasive assisted reproductive techniques).

Of course no one is asking a married woman if she had sex with someone other than her husband. And (so far) no state requires that every newborn be DNA tested to see if the birth mother the genetic mother and her husband the genetic father. Although some experts recommend this approach, I reject it.

Complicated, indeed.

California appeals court rejects possibility of three parents in dependency action

Same-sex couples are no worse than heterosexual couples when it comes to raising children. This we know and insist upon regularly when challenged in court cases, in legislatures, or at the ballot box. Well occasionally a case comes along as a reminder that we are no better, either. So it is with In re M.C., decided earlier this month by the Second Appellate District of the California Court of Appeal (from the Los Angeles area).

M.C. came into state custody when her biological mother, Melissa, was arrested as an accessory to the attempted murder of Melissa's wife, Irene. Here is a summary of the details: Melissa and Irene got together in 2006, registered as domestic partners in February 2008, and separated in May 2008. Melissa began a relationship with a man, Jesus, became pregnant by him, and lived with him for the first few months of the pregnancy. In July, 2008, Melissa filed to dissolve the domestic partnership and also obtained a restraining order against Irene arising from over a year of incidents of physical violence. Melissa went back to Irene in September 2008 and the couple married in October, 2008, during that period when same-sex marriages were legal in California. Melissa did not tell Jesus where she was living, and he did not try to contact her.

MC was born in March 2009 and given the surname that Melissa and Irene shared, although Melissa was the only parent listed on the birth certificate. Melissa moved out with M.C. a few weeks later, and Irene filed for joint custody in June. In that same action, Melissa obtained a restraining order against Irene. Melissa resumed contact with Jesus, who had moved to Oklahoma. Jesus sent her a little money, and she regularly took MC to visit Jesus's family. At Melissa's request, Jesus also submitted a declaration of paternity in the divorce proceeding in an effort to defeat Irene's custody request.

In September 2009, Melissa's new boyfriend stabbed Irene in the neck and back, causing severe injuries. Irene saw the assailant run from the scene and get into Melissa's car. This is what resulted in Melissa's arrest and incarceration. The dependency petition for M.C. said that the juvenile court had jurisdiction over the child because of Melissa's incarceration and history of drug abuse and Irene and Melissa's history of domestic violence.

The opinion goes through the history of violence, drug use, lack of suitable living situation, etc with respect to both Irene and Melissa. The Department of Child and Family Services (DCFS) contacted Jesus in Oklahoma and interviewed him by phone. He asked to have the child placed with him, and he returned to California to visit M.C. and attend meetings and court hearings. At some point there was agreement that M.C. should live with Melissa's grandparents, although at the last minute DCFS recommended that Jesus receive sole physical custody, Jesus and Melissa receive joint legal custody, and Melissa and Irene receive supervised visitation.

The trial judge found that Melissa was M.C.'s biological mother and that both Jesus and Irene were presumed parents, Jesus because of his biological status and relationship with the child, and Irene because she was married to Melissa when the child was born. The court placed M.C. with the Melissa's grandparents, subject to unsupervised visitation by Jesus and his mother and supervised visitation with both Irene and Melissa (Melissa's, of course, would have to take place where she was incarcerated....). All three parents appealed. Interestingly, Melissa and Irene both challenged the court's ruling that Jesus was a presumed father. Jesus challenged only the court's refusal to place M.C. with him.

The issue on appeal was the propriety of the trial court's finding (which the appeals court calls "novel") that M.C. has three presumed parents. Presumed parents have a right to participate in dependency proceedings, have appointed counsel, and receive reunification services. And here is where the Court of Appeal delivers the disturbing legal conclusion that a child cannot have two mothers or fathers if such recognition would result in the child having three parents. The California cases cited by the court for that proposition, however, do not need to be read that way. The appeals court remands the case to the trial court to determine which presumption to honor, using the statutory standard that when there are conflicting presumptions "the presumption which on the facts is founded on the weightier considerations of policy and logic controls."

One judge (of the three hearing the appeal) went further and concluded that the presumptions should have been resolved in favor of Jesus and custody placed with him immediately.

Here are the troubling aspects of the court's ruling. (As opposed to the troubling aspects of M.C.'s life, which are, of course, numerous). I'm chronicling these because the reasoning of this case may hold sway when there is a known biological father in what are the more common circumstances of a same-sex couple who are both fit parents.

The law must be able to recognize that a child can have three parents. The categorical statement in this opinion to the contrary is wrong on California law and as a matter of policy. California trial courts are already allowing a bio mom's partner to adopt a child without terminating the rights of a semen donor who is functioning as a father. A nonbio mom in California becomes a legal parent through holding the child out as her own or through being married to or in a domestic partnership with the bio mom. That should not be jeopardized by the existence of an identifiable genetic father. The Children's Advocacy Institute at the University of San Diego School of Law filed a friend of the court brief advocating that M.C. had three parents.

Jesus may be the best candidate of these three people to raise M.C., but he should not have qualified as a presumed father under California law (for reasons that involve more analysis of appellate opinions than I can discuss here and that should make for a terrific law review note for some current law student). Melissa wasn't in hiding after she left him, and Jesus could and should have shown some interest in raising M.C. from the beginning if he wanted to claim parental rights. This case makes it too easy for a bio mom to enlist a bio dad in doing away with a nonbio mom's rights.

The appeals court says Irene "likely" had a superficial attachment to M.C. because the couple and child lived together for only three weeks. Well, a couple of years ago a different California appeals court rejected the argument that a period of time was necessary before a nonbio mom could be considered a parent. (See my post about Charisma R. v. Kristina S. here.) This court reveals its hostility to nonbio moms in another place -- a completely unnecessary footnote in which it suggests that the purpose of "paternity" determinations is providing genetic history for a child and that those provisions should not be interpreted to facilitate "parentage" determinations for nonbiological parents. Fortunately, the California Supreme Court has ruled otherwise, going back to 2005.

I've written elsewhere that we are likely to see increasing instances of a child conceived through sexual intercourse born to a woman who has a same-sex partner or spouse. I am deeply troubled by the idea that method of conception determines legal parental status, although I begrudgingly admit that seems to be the current state of the law.

Taking the facts in this opinion as true, I would also conclude that M.C. belongs with Jesus. It is possible to reach that conclusion without unnecessary pronouncements limiting the number of parents a child may have to two or privileging biological connections. My lawyer friends in California tell me this opinion might be ripe for depublication, which would limit its impact. I'm banking on that.