Key Takeaways
- A growing number of states let courts recognize more than two legal parents when failing to do so would harm the child.
- Recognizing a third parent does not mean equal custody, because courts still allocate decision-making and parenting time case by case.
- Stepparents are generally not legal parents unless they adopt, and multi-parent laws can offer another path when a child already has two legal parents.
Parents have traditionally come in pairs. But what happens when a child has three people who have all acted as parents? Can the law recognize all of them?
In this TalksOnLaw Brief, Joel Cohen talks with Douglas NeJaime, Anne Urowsky Professor of Law at Yale Law School and a leading scholar of parentage law, about how the law has moved from insisting on two parents toward recognizing more than two when a child's well-being depends on it.
From "Only One Father" to Three Parents
Professor NeJaime explains that a few states, following California's lead in a law that took effect in 2014, now allow a court to recognize more than two parents when that serves the child or when failing to recognize a third parent would harm the child. He contrasts that with Michael H. v. Gerald D. (1989). Carole, married to Gerald, had a child, Victoria, with her neighbor Michael, and both men treated Victoria as their child. The question was whether Michael could challenge the marital presumption that made Gerald the father. The Supreme Court upheld California's refusal to let him, with Justice Scalia writing that California law, like nature itself, recognizes only one father. The child's attorney had asked only that she be allowed to keep relationships with both men.
He then describes a 2018 California case. A married woman had a child with a coworker, her husband knew the child was the coworker's, and all three adults were involved in the child's life, which included significant special needs. The court recognized all three as parents, putting the child's best interest first, and noted that the couple could have kept the biological father out at the start but instead allowed him to form a parental relationship.
Who Makes the Decisions?
Asked whether three parents means decision by majority vote, Professor NeJaime explains that in many cases the additional parent is the child's primary caregiver. Courts keep wide latitude over legal and physical custody, so recognizing a parent does not mean granting every parental right; one parent may have visitation and another custody, just as in two-parent families.
Stepparents and Adoption
A stepparent is generally not a legal parent and would need to adopt, which usually requires the noncustodial parent to give up parental rights. Multi-parent laws can help stepparents who are raising a child, especially if the custodial parent dies. California also allows an adoption that does not terminate the noncustodial parent's rights when everyone agrees.
What to Know Now
The movement Professor NeJaime describes has continued. Statutes in California, Washington, Vermont, and Maine, among others, allow courts to recognize more than two parents in appropriate cases, and the Uniform Parentage Act of 2017 offers states an optional provision to do the same. Bills to permit multi-parent recognition have been introduced in other states, including New York. Supporters say these laws reflect how children are actually raised, while skeptics worry about added conflict and about intrusion on the rights of existing parents. NeJaime and Courtney Joslin have since examined these issues in published scholarship.
