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Friday, August 03, 2012

Three Parents and a Baby

For those looking to talk about any family law topic other than the latest TomKat maneuvers, some pending state legislation may do the trick.

A state senator (in California, natch) has proposed legislation allowing a child to have more than two legal parents.  Any parent would have to meet existing definitions of parenthood, and courts would continue to allocate custody and visitation according to the best interests of the child, including denying contact where appropriate.  But whereas existing law requires courts to choose a maximum of two parents, those with the strongest claims, the proposed bill  would eliminate the cap.  Sponsor state senator Leno offers numerous rationales for the bill including giving more discretion to judges to recognize bonds between parents and children, reducing foster care placements, and increasing children's access to financial support, health insurance and inheritance rights.  Perhaps most significantly, Sen. Leno defends the bill as adapting to the changing needs of families: "The bill brings California into the 21st century, recognizing that there are more than Ozzie and Harriet families today."

I wasn't surprised by this bill, only by how long it took for someone to propose it.  The data is overwhelmingly clear that families don't now, and it's doubtful they ever did, conform to an idealized heterosexual mother and father model.  The growth of assisted reproductive technology (ART) and of unmarried cohabitating couples, both gay and not, as well as the large number of remarriages and stepparents, mean that many children consider multiple adults to be a parent of one type or another.  For instance, the 2009 Current Population Study report estimates that about 12% of all children live with a stepparent (a number experts consider to be an underestimate) and the 2010 census reveals that another 3% live in households with a parent and her or his unmarried partner.  In line with this reality, a few state courts, as well as a Canadian court, have recognized the possibility of more than two legal parents for a particular child.  Numerous scholars have also called for an expanded understanding of legal parenthood, including me and Melanie Jacobs of Michigan State (see Overcoming the Marital Presumption, her latest of a series of articles on this topic). 

Another thing that surprised me is the vehemence of some people's reactions to the bill.  (Although many would say that I should know better by now how worked up folks get about other people's family structures, and they'd be correct).  The comments mostly range from the straightforward if unilluminating (It's not okay for children to have more than two parents.  It's completely weird...") to the outright abusive.  (In fact numerous media outlets including the Sacramento Bee had to shut down comments on the story due to hate speech).   Critics have argued that it will confuse children, compared it to polyaromy and polygamy, and connected it to the ongoing controversy over whether marriage gay couples can marry.  Yet none of the critiques that I have seen---and I've been surfing for days--seem to address the fact that this bill doesn't expand the definition of parenthood, but rather it only allows for more people fitting this definition to be involved with a child, if that's in the child's interests.

The bill has passed the senate and is up for hearing in the state assembly next week.  It is widely expected to pass, but I'm sure not without more furor.  I'm looking forward to posting more on other family law and ethics issues in the coming month.  Thanks to Dan for inviting me.

Posted by Cynthia Godsoe on August 3, 2012 at 10:37 AM in Article Spotlight | Permalink


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Thanks to all for the great comments. As to the question of who qualifies as a parent in California, it includes most biological parents (outside of the ART arena), a man who signs a voluntary presumption of paternity, and a man who is married to and living with the mother, though the latter two are rebuttable by a judgment that
another man is the biological father. It also can include persons in a registered domestic partnership with a birth mother at the time of a child's birth, and someone who lives with a child and holds him/herself out as the child's parent. Accordingly, this new law will affect people in a number of situations, such as the stepparent situation Charles raises, as well as where a man began dating a woman when she was pregnant and then raised the child (the Seal-Heidi Klum situation, if Seal hadn't adopted her oldest child), or where a same-sex couple asked a male freind to help them conceive and agreed that all three adults would raise the child (modified "The Kids Are All Right" scenario).

Posted by: Cynthia Godsoe | Aug 6, 2012 10:47:38 AM

Louisiana has recognized for some time by precedent the possibility of 2 dads and one mom for kids born of sex. Elsewhere,where there are 2 presumed dads, courts often are directed to choose between the 2 under vague statutory guidelines usually found in the marital presumption laws.

Posted by: Jeff Parness | Aug 4, 2012 11:16:16 AM

Fascinating. I imagine the decision also may have interesting implications for federal and state child support and welfare laws, which have yet to catch up with the growing complexity raised by caregivers raising children from multiple families. See Adrienne Lockie, Multiple Families, Multiple Goals, Multiple Failures, 32 Harv. J. L. G. 109 (2009) (detailing federal and state child support laws that are based on false assumptions about family complexity and calling for an expanded definition of parenting and child support), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1268897.

Posted by: Adam Zimmerman | Aug 4, 2012 10:26:53 AM

Interesting! Why not define families as they truly are and in ways that protect and support children? This certainly beats trying to fit and force everyone into some unrealistic model of what a family "should" be. And anyway, I am quite sure all those "weird" relationships are here to stay. Let's hope this is the beginning of something.

Posted by: Aliza Kaplan | Aug 4, 2012 12:36:17 AM

(A quick follow-up to the first sentence of my comment—I was not suggesting any of the relationships mentioned are weird, just that some people, such as anonymous commenters on newspaper websites and such, might think that. That's why I put "weird" in quotation marks.)

Posted by: Charles Paul Hoffman | Aug 3, 2012 2:03:31 PM

While I'm sure most people's minds jump immediately to what they think of as "weird" situations (e.g., polyamorous relationships, surrogacy situations, and, especially, children of same sex couples), it's worth considering how much easier this could make things for divorced couples and their children. Thinking of my own childhood, it's kind of insane that my stepfather, with whom I lived from about the age of four, never had any legal connection to me other than as my mom's husband. Luckily, it was never a big issue, as my mom was around on the few occasions that I needed more serious medical care and my school didn't make an issue out of him signing permission slips and such. But, looking back, it would have been nice if (a) we could have eliminated some of the legal uncertainty and (b) the law could have recognized him as one of my parents without insisting that I effectively disown my dad.

Posted by: Charles Paul Hoffman | Aug 3, 2012 1:59:40 PM

Great post Cynthia. Two comments:

(1) To put this in broader historical perspective, in the seminal (sorry;)) California surrogacy case of Johnson v. Calvert, 851 P.2d 776 (1993), the ACLU actually suggested making both the intended mother and the surrogate as mothers, a suggestion the court rejected in a footnote (footnote 8 of the opinion), so it is ironic that California is now being the innovator 19 years later.

(2) Discussions of how this will impact the welfare of children are, for a subset of children, logically problematic for reasons I have argued in Regulating Reproduction: The Problem with Best Interests, 96 MINN. L. REV. 423 (2011), http://ssrn.com/abstract=1955292, Beyond Best Interests, 96 MINN. L. REV. 1187 (2012), http://ssrn.com/abstract=2014069, and Rethinking Sperm Donor Anonymity: Of Changed Selves, Non-Identity, and One Night Stands, 100 GEO. L. J. 431 (2012), http://ssrn.com/abstract=1961605.

For any child for whom the recognition of three parents will alter when, whether, or with whom its parents conceive, best interests of resulting children arguments (even if there is empirical evidence of "harms" supporting them as there probably is not in this case) cannot be sustained for reasons similar to why most states reject wrongful life liability and what Parfit calls "The Non-Identity Problem." Still, as I argue in the first of those papers, discussion of "best interests" of resulting children often is used as a much more palatable way to talk about illiberal arguments, as I suspect is the case here.

Posted by: I. Glenn Cohen | Aug 3, 2012 1:46:02 PM

I find the idea of "polyaromy" stimulating. I myself would prefer cinnamon and clove.

Posted by: Jimbino | Aug 3, 2012 1:19:25 PM

Perhaps I should know this, but what is California's definition of parenthood? And is it likely in many cases that more than two people will meet it?

Posted by: SparkleMotion | Aug 3, 2012 11:27:18 AM

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