Friday, July 13, 2012

Proposed Law Opens Door to More Than Two Legal Parents at a Time

I always have to tell my Adoption Law class that the reason a child can't be adopted until parental rights of the birth parents are terminated is that American law recognizes that a child can have no more than two parents at a time.  The New York Times reports that California might change that:
Bill Delaney’s two little girls spend three nights a week with their fathers, at the home Mr. Delaney shares with his husband in San Francisco. The other nights, they stay with their mothers, a lesbian couple who live nearby.
The girls have four parents — a result of a kind of nontraditional family arrangement that has become increasingly common. But officially, California, like most other states, recognizes no more than two legal parents.   
That limit could soon be lifted.   

A bill moving through the California Legislature would allow judges to recognize more than two legal parents for a given child, opening the door for alternative families to seek legal recognition of their relationships.

“There are literally scores of different families and circumstances,” Mark Leno, the state senator who sponsored the bill, said.

“This is about putting the welfare of the child above all else,” he said.

* * *

Mr. Leno’s bill follows a court case here last year in which a young girl being raised by two lesbian mothers was sent to foster care after a fight landed one mother in the hospital and the other in jail. The girl’s father, who had maintained a relationship with his daughter, asked the court to release her to his custody.

The trial court ruled that both mothers and the father were all parents. But a California appeals court reversed the decision, ruling that the child could have only two parents.

* * *

In Portland, Ore., Sean Kane adopted his wife’s two children from her first marriage. But because they maintained close ties with their biological father, who now lives in California, Mr. Kane did not want the court to sever that legal relationship. Instead he pursued a third-parent adoption, which was finalized last year.

“I wanted to send the message to the children that they were my children, as far as I was concerned,” he said.

Mr. Kane’s adopted daughter, Sara Miner, 20, said: “If it were a choice between dropping my dad to be replaced by my stepdad, I would not have been open to it, but with a joint adoption you don’t have to battle about who is going to be Mom and who is going to be Dad. You can have a situation where everyone is happy and part of the family.”
For the same reasons I approve of stepparent/second-parent adoptions, I think this is a good thing. The more people who are legally obligated to support a child, the better! It means that children are less likely to be orphaned, less likely to end up in foster care, less likely to live in poverty, less likely to worry about all of those things.  And to the extent it presages adoptions without birth parent relinquishment (that's essentially what happened when Sean Kane adopted his stepchildren without having their bio dad's rights terminated!), it could be a very, very good thing for openness in adoption.


ROBYN Chittister said...

As you're a lawyer, I'm wondering if you could answer the first question that came to mind when I first read about this.

Instead of allowing more than 2 legal parents, why not just change the law so that, if the legal parents are unable to parent, and a guardian has not been appointed, then either: a) the legal parent immediately appoints a guardian, if possible, or b) custody of the child goes to the person with the closest relationship with him/her, regardless of legality or biology? I know that (b) would be difficult to assess.

Perhaps I just don't see why the child of the lesbians would have to go to foster care, if neither of her parents were dead and could have appointed the bio dad guardian.

malinda said...

Good questions, Robyn! It's a question of certainty, as opposed to "what would a court do." Even if one "appoints" someone else as guardian, a court doesn't have to accept that appointment -- they usually will, but they don't have to, especially if someone else steps in and wants to be guardian. Suppose our lesbian parents "appoint" bio dad guardian, but a maternal grandma seeks custody in opposition. EVEN IF THE LEGAL PARENTS DIDN"T WANT GRANDMA TO GET CUSTODY, a court could appoint grandma instead of bio dad.

But a court does have to accept the proposition that a fit legal parent ALWAYS trumps anyone else seeking custody. So if bio dad is a legal parent, and is fit, no amount of squawking by bio grandma will allow the court to assign her guardian.

-J.Darling said...

I can see this having further implications as well. Take Step-parents. They can't (legally) sign permission slips for school events, give consent for medical treatment, etc of the children they parent. It would be a great step to legally include them in the family unit, since they are married into it.

While I love the idea of every child being wanted, I think it could be confusing to have too many "legal gaurdians". While it does "take a village", what happens when 1 legal gaurdian wants something for the kids the others don't? Majority rules? Seems like the idea needs some ironing out...