Slowly legislatures are enacting laws and judges are making decisions which begin to reflect the families that people create. As a result, the reality of children’s lives in contemporary society is being protected.
The traditional, stereotypical model of the American family no longer dominates. The female/male parental dyad continues to exist, but its percentage as a proportion of the population of families continues to fall.
Single parents, same-sex couples raising children, co-parenting partnerships, blended families with stepparents — these all have become commonplace. Some adults come into a child’s life initially as a stepparent or some other role and then act as much as a parent as the original parents. Some adults decide to co-parent without being romantically involved. How can a child’s relationship with these adults in her life be protected?
Courts have developed concepts such as second parent adoption and psychological and de facto parentage to recognize and give status to relationships which fall outside the traditional model.
Now some families are intentionally forming with the intent to be comprised of more than two parents. The adults are purposely deciding to have more than two adults participate equally as parents from the beginning.
Other families find that there are more than two adults raising a child through life circumstances.
Courts and legislatures now face the challenge to balance rights of the adults and the child or children. When presented with factual situations where more than two adults have a legal claim to parentage, some courts in the United States and Canada have begun to recognize and confer legality to these multi-parent families. Identifying what is in the best interest of a child drives these findings. Judges strive to protect a child’s relationship with each adult who functions as a parent in that child’s life.
Without this legal recognition and protection of the relationship, if the legal parent dies, the child is at risk of losing a key adult in her life. In addition, without the legal recognition, the child will not be eligible for governmental benefits. Without that protection, the child will be subject to state inheritance taxes, will lose of ability to sue under a wrongful death act or to collect a workers compensation award. An unprotected child would be ineligible for Social Security benefits.
As far back as 1985, an Alaskan judge allowed a third adult to become a child’s adoptive parent without requiring that the natural parents of the adopted person be relieved of all parental rights and responsibilities. Since then courts in Pennsylvania, Massachusetts, Oregon, Texas, Florida, Washington, New Jersey and Ontario have recognized families made up of more than two adults. Many of these decisions have been in the context of adoptions where the records are sealed. Others are not necessarily reported decisions. Louisiana provides by statute and case law that a child may have two fathers and a mother where the mother’s husband is not the biological father. La. Civ. Code, Art. 134; Smith v. Cole, 553 So. 2d 847 (La. 1989). Delaware and the District of Columbia allow a child to have more than two people with all the rights and responsibilities of parentage by statute. Del. Code Ann. tit. 13, §§8-201, 8-203, 8-204; D.C. Code &s;§16-831.01, et seq.
In 2013, California enacted legislation to recognize that a child could have a parent-child relationship with more than two parents. The year before, British Columbia passed a new Family Law Act which allows for three or more parents. And now British Columbia has issued the first birth certificate listing three parents. Saskatchewan and other provinces now also allow multi-parent families.
If legislators and judges keep looking at what is in the best interest of the child and are willing to consider new ideas, the reality of a child’s life and the adults functioning as their parents will be protected.