Paul McGuire | Legally LGBT
One of the key arguments made against same-sex marriage is that children should be raised by a mother and a father. As the law exists in most areas, children are limited to two legal parents. Thus, if a child is raised by two men, the child has two fathers and no mother.
However, lawmakers in the United States and elsewhere proposed an option to allow for a third or even fourth parent. The additional parent is often of the opposite sex and gives the child access to role models they need.
I recognize that most same-sex couples will be able to provide a loving home for a child that will foster healthy development. I also recognize that some parents feel the need to provide children with access to role models of the opposite sex. Sometimes the best way to provide this is by bringing in a parent of the opposite sex. A change in the current law is necessary to protect the rights of all parents involved.
Nothing prevents a couple from bringing in extra parents to raise their child. Things can work out great as long as everyone is getting along. However, if the relationship breaks down, only legal parents have a right to court-ordered visitation with their children.
In a recent case in California, a woman conceived a child through artificial insemination and raised the child with the biological father for a time. Later, she became involved with another woman and they registered as domestic partners. While that relationship was doing well, the three raised the child together, though the second mother never officially became a parent to the child.
A few years later when the women broke up, the second mother was unable to seek custody rights in court because she was not legally a parent.
Recognizing the damage that custody battles can cause children caught in the middle, the last thing I would want to see is more custody battles. However, it is in the child’s best interest to have access to the parents who raised them. Currently, the extra parent may find themselves excluded from the child’s life if things break down.
In the U.S., the legal parents have a constitutional right to choose how to raise their children. Thus, the extra parent, who is not a legal parent, has a difficult time seeking custody because courts place a high burden on them before the wishes of the parents will be overturned.
This is not a question of whether these different parenting arrangements should exist, but of whether we should provide them legal recognition. Many similar parenting relationships already exist. California parentage law protects the rights of parents who spend significant time raising a child regardless of biological relationship. It seems only natural that there should be some way for the third parent to protect that relationship without having to terminate the rights of one of the two legal parents.
The California Legislature passed a bill last year, SB1476, which would have provided a way for a third parent to have their relationship with a child recognized. Governor Jerry Brown vetoed the bill, expressing concern that there were many questions not yet answered about how the law will deal with the extra parents.
Opponents of the bill were concerned because it did not set a limit on the number of parents a child could have. It also did not take into account how additional parents would affect rights to inherit after death, social security benefits and how child support would be calculated among three parents.
Similar legislation has been proposed in the Netherlands that would allow for three or more legal parents. One family at the center of the debate in that country is comprised of two moms and two dads. Each of the children is the biological child of one of the men and one of the women. However, only the two moms are legal parents. If the relationship between the parents breaks down, the two dads will likely be unable to seek custody through the courts.
Hopefully in the coming years we will see similar efforts to recognize the many different parenting arrangements out there. For now, anybody considering acting as a third parent to a child should be careful to work out disagreements with the legal parents informally whenever possible because they might not have the support of the court later.
—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.