Paul McGuire | Legally LGBT
What should a judge do when three people show up in court claiming to be parents of a single child? Until recently, a judge would not have been able to recognize more than two legal parents. However, a new law signed by Gov. Jerry Brown allows the recognition of more than two legal parents, in specific circumstances.
The case that prompted a change in the law is the complete opposite of responsible parenting. In a 2011 California case, three people claimed parental rights to a single child. The biological mother and father conceived the child together, but by the time the child was born, the mother was married to another woman and the father was not around. The court became involved after the child was removed following an incident where the biological mother’s boyfriend stabbed her wife.
The biological mother, her wife and the biological father each claimed to be parents in the resulting juvenile court proceedings. The court stated that none of the three parents seeking recognition in this case was particularly suited to provide a safe and stable family environment for the child.
Nonetheless, the judge also recognized that California’s existing statutory framework is ill equipped to “accommodate rapidly changing familial structures … and novel parenting relationships.” In the past, the California Supreme Court “rejected the concept of dual paternity or maternity where such recognition would result in three parents,” documents state.
Typically, judges will avoid ruling in a way that would significantly change the law because it is for the state legislature to decide if a change is necessary. Judges are not well equipped to understand the needs and desires of the public. The judge here included this note specifically to give the legislature a chance to change the law if they saw fit.
Under the new law it is unlikely that the case would have turned out differently.
The California legislature responded to this case with a bill in 2012, SB 1476, that would have allowed for the recognition of more than two parents in certain cases. I previous wrote about SB 1476 here in March, where I explained the objections that were raised and the concerns Gov. Brown noted when he vetoed the bill.
Gov. Brown signed a similar bill, SB 274, into law Oct. 4. The new law allows judges to “find that more than two persons with a claim to parentage … are parents if the court finds that recognizing only two parents would be detrimental to the child.” The law also requires courts to “allocate custody and visitation among the parents based on the best interests of the child.”
The new law also addresses one of the concerns with the previous bill: how to deal with determining child support. Child support in California is calculated using a formula based on a statewide guideline. The new law says it does not intend to change the calculations used for determining child support.
The new law will also not change how California treats sperm donors. Under the California Family Code, a sperm donor is presumed to not be a legal father of the child if the couple uses a licensed physician for the procedure.
A couple could now work up an agreement through which a donor would be involved in the child’s life and become responsible like a parent, including any financial responsibility for the child. Same-sex couples using a sperm donor may choose to do so in order to preserve the biological connection between the donor and the child.
Though the new law allows judges to recognize more than two legal parents, it is important to speak with an attorney to determine the best way to ensure that a judge will recognize your specific setup.
—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at paul-mcguire.com.