Tuesday, 12 November 2013 00:00

California Law Allows Children to Have More than Two Legal Parents

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On October 4, 2013, Governor Jerry Brown signed legislation SB 274 allowing children in California to have more than two legal parents.  Governor Brown stated that the legislation addresses the changing family structure – such as situations where same-sex couples have a child with an opposite-sex biological parent.  Such legislation gives the courts the ability to divide custody and financial responsibility among three or more legal parents who are involved in raising the child.

In 2012, Governor Brown vetoed a similar piece of legislation.  The idea behind the law arose out of a 2011 case, In re M.C., where two women and a man seemed to all fit the definition of a legal parent.  In that case, M.C.’s mother, Melissa, was involved with another woman, Irene, prior to Melissa’s pregnancy.  The two women lived together and registered as domestic partners in 2008.  Within a few months, they separated, and Melissa started a relationship with a man named Jesus.  Jesus and Melissa conceived a child – baby M.C.  During her pregnancy, Melissa and Irene reconciled.  Irene promised to care for the baby with Melissa.  When Melissa moved back in with Irene, Jesus lost all contact with Melissa.  Prior to baby M.C.’s birth, Melissa and Irene married in California in October 2008.  After baby M.C.’s birth, Melissa, Irene, and the baby lived together for three weeks until Melissa and the baby moved out.  Melissa’s new boyfriend then attacked Irene with a knife.  Melissa was charged as an accessory to attempted murder and sent to jail.  Baby M.C. was removed from Melissa’s custody and placed in foster care.  Here, the issue became who had the right to petition for custody of baby M.C. – Jesus or Irene?

In California, under the Uniform Parentage Act, there are several ways that a man or woman could gain presumed parentage, such as marrying the mother around the time of the child’s birth or by receiving the child into his/her home.  Since Jesus had attempted to establish a relationship with baby M.C. and since he was the biological father, the court found that he met the presumptions of parentage.  But, Irene married Melissa around the birth of baby M.C., so she also met the presumptions of parentage.  Because SB 274 did not exist in 2011, the California Supreme Court held that Baby M.C. could legally only have two parents.  The case was remanded back to the lower courts to determine who the legal parent was – Irene or Jesus.

SB 274 attempts to rectify such an unusual and complicated family dynamic by allowing all three parents who meet the criteria of a presumed parent to play a role in their child’s life. 

Several groups have condemned the legislation as an attack on the traditional family.  The biggest concern, according to those that opposed SB 274 is that such a law will lead to greater conflict and indecision over the well-being of the child.

While SB 274 only applies in unusual or complicated familial arrangements, many families must deal with custody and parentage disputes during a dissolution of marriage, legal separation, dissolution of domestic partnerships or parentage actions.  Contact an experienced family law attorney for additional information.

10.0Diana Pamela Zitser

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diana@zitserlaw.com