Traditionally, parents have come in pairs, but is two the legal maximum when it comes to parental rights? How does the law treat situations where children have more than two important parental figures, and how does assisted reproduction impact parental status? Professor Douglas NeJaime (Yale Law School) provides examples and case law to demonstrate how law regarding parentage is changing and cites cases and new laws that have empowered courts to recognized three people as legal parents.
Prof. Douglas NeJaime is a professor at Yale Law School and a leader at the intersection of family law and assisted reproduction.
Cases and Law Discussed
Michael H. v. Gerald D.: Found that a biological father does not have a fundamental right to obtain parental rights after the presumptive father has exercised significant responsibility over the child.
C.A. vs C.P.: Under circumstances where the biological father and maintained a relationship with the child, a court ruled that while the intended father (the husband) and the mother were legal parents, the biological father also possessed parental rights, in this case to visitation of the child.
California S.B. 274 - Signed into law in 2013, the law allows courts to recognize more than two legal parents where “the court finds that recognizing only 2 parents would be detrimental to the child.”
An interview with family law expert, Professor Douglas NeJaime
Can more than two parents be legally recognized?
Joel Cohen (Host): Professor, how many parents can a child actually have?
Prof. Douglas NeJaime: So you know with reproductive technology, but also just with the way people form families and divorce and remarriage, children might have more than two people who are parenting them. Or they might have two legal parents, but one or both of those folks might not be parenting them and someone else might be parenting them. And so, states have increasingly had to address the question of whether a third person, let's say, can be a parent. And now a few states, following California's lead in 2014, have passed laws that affirmatively allow a court to recognize more than two parents for a child if it's either in the best interest of the child or it would be harmful to the child if the third parent wasn't recognized.
Michael H. vs. Gerald D. (0:56)
Prof. NeJaime: So take the California case that we had talked about, Michael H. versus Gerald D. which is a U.S. Supreme Court case from 1989. In that case, Carol who was a a model, traveled the world. She was married to Gerald who was an oil executive, also traveling the world, and she had a child with her neighbor, Michael. And she and Gerald were maybe going to split up, and Michael was staying with the child some times, and the child and Carol visited Michael in the Caribbean, and then Gerald would also come and stay with the child. And both Gerald and Michael treated the child, Victoria, as their child.
Prof. Nejaime: But the question was, does Michael have the ability to challenge the marital presumption that treats Gerald as the father of the child and the U.S. Supreme Court affirmed California's decision to not allow Michael to establish paternity. And in that case, Justice Scalia said that "California law like nature itself recognizes only one father." The attorney for the child in that case had asked the Court to allow the child to maintain relationships with both fathers.
Host: It wasn't even for custody it was just for some type of visitation rights?
C.A. vs C.P. (2:30)
Prof. NeJaime: That's right. So, fast forward to 2018. There's another case in California. A child is born to a married woman. The woman was having a sexual relationship with a co-worker. She had the child. Her husband knew that the child was the genetic child of the co-worker. She stays married to her husband. All three of them are involved in the child's life. Child has autism and special needs that require medical attention and cost money and they're all contributing, but eventually, the married couple decides they don't want the genetic father around anymore. He sues and the California Court of Appeals says under this new California law, it would be detrimental to this child not to treat the biological father as a father and so all three people are parents of the child. And so that's really what's changed in the past couple decades at least in a few jurisdictions.
Host: And that's fascinating because you could imagine an argument that having this constant reminder of an infidelity as a part of your life could be bad for the marriage, but the best interest of the child was preeminent.
Prof. NeJaime: The court in that case actually said, look married couple you had the ability to keep the biological father out of your lives at the get-go but you didn't do that and so once you've allowed him in and allowed him to form this relationship, you can't now decide that you no longer want it.
Decision Making with More than Two Parents
Host: I wonder if as more and more courts are accepting more than two parents, do we run into democratic principles – is two out of the three required to make important decisions?
Prof. NejJaime: Yeah so it's an interesting issue and people have raised the concern that if we have multiple parents it's going to be even more conflictual and there's going to be more issues. What we see is that in a lot of these scenarios the person who's being recognized as an additional parent in many cases is the primary caregiver of the child and there's already two legal parents who have been recognized. So, it's not like that California case I described. And so that person then might be the person who's made the decision maker. But courts have a lot of latitude as we talked about their discretion to decide who has legal custody and physical custody over the child, and just because they recognize more than two parents doesn't mean that they'll actually give all parental rights to those parents. In other words, one parent might have visitation and another might have custody. One parent might get to make major decisions for the child, the other might not. And so that's really how courts are dealing with those questions just as they do with two parent families. Which in many ways seems to make a lot of sense.
Host: I'm thinking of someone who has a very close relationship with their ex-stepfather. So they have two parents who they have relationships with, but in many ways they were raised by the former husband of the biological mother, and I wonder in that case if that ex-stepfather – I'm not sure if I'm even using the right term – actually has legal rights.
Prof. NeJaime: Yeah, so generally a step parent-child relationship is not a legal parent-child relationship and the step parent would have to adopt the child. Many step parents who would adopt the child can't do so because they could only adopt the child if the non-custodial parent (i.e. not the parent they're married to) relinquishes their parental rights, which they won't do. And so, these multi-parent laws are a way for some people who are step parents legally, but are parenting the child and the child views them as a parent to be able to be treated as a parent. And you often see this, especially in cases where the biological parent in the household dies and the child's only been with the step parent and the step parent now has no right to maintain custody of the child. But California has also allowed adoption that doesn't terminate the right of the non-custodial parent, so in that case, if everyone agreed, the step parent and the two biological parents could consent to adoption by the step parent without terminating the rights of the non-custodial parent. And these, in other words, multi-parent laws can actually help people have laws that reflect the actual families they want to form and have formed.