Three’s Family Too

The “nuclear” family has not been status quo in America for many years. These days, depending on who you talk to, the very word brings to mind a multitude of living situations. Blended families, extended families, skip generation families, single parent households, and same sex marriages are among those helping to redefine our domestic landscape. It’s no surprise that dealing with legal issues, especially in relation to children, has become all the more complex.

One of the most compelling areas of family law is the question of legal parentage. In fact, only a quarter of a century has passed since Justice Scalia, of the United States Supreme Court, held in Michael H. v. Gerald D. that a child did not have a right under due process or equal protection to maintain a parental relationship with both her biological father and the husband of her mother. The Court further held that the biological father’s constitutional rights were not violated by California’s marital presumption which established the husband as the child’s legal father. ¹

As often is the case in the United States, where reality shifts, a change in the law is never far behind.

In 2011, the Supreme Court made history in the ruling of a case in which the biological mother, her wife, and the biological father of a child each claimed to be parents in the resulting juvenile court proceedings. The court stated that it could not give parental status to all three parties based on the law which then existed, inviting the legislature to change, recognizing that California’s existing statutory framework was ill equipped to “accommodate rapidly changing familial structures … and novel parenting relationships.” ²

In the past, the California Supreme Court rejected the concept of dual paternity or maternity where such recognition would result in three parents. However, that precedent was laid to rest in 2013, when California’s Governor Jerry Brown signed into law Senate Bill 274, allowing the courts 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.” ³

This bill does not change any of the requirements for establishing a claim to parentage under the Uniform Parentage Act. It only clarifies that where more than two people have claims to parentage, the court may, if it would otherwise be harmful to the child, recognize that the child has more than two parents.

Sen. Mark Leno, who spearheaded the change in legislation, says “The structure of today’s families is evolving, and courts need the ability to recognize these changes so children are supported by the adults that play a central role in loving and caring for them … it is critical that judges have the ability to recognize the roles of all parents so that no child has to endure separation from one of the adults he or she has always known as a parent.” ⁴

Ultimately, this raises the question of what it actually means to be a parent. As non-nuclear lifestyles become more common, we may find ourselves redefining words once thought to be immutable, such as “parent” and “family.” After all, there are without a doubt many more children whose lives fit the legislature’s image; who are conceived and raised in situations where a two-parent cap may be a source of harm and deprivation. While the very existence of such families may seem novel, or even odd to traditionalists, they are a reality of modern life, and children should not be made to suffer from our desire to cling to the past.

It’s not clear where all these changes will leave us. What is certain is that the rise of three-parent families means more children being born into loving homes that would once have been childless. That fact alone has changed forever what it means to be a parent.