California legislators should not support SB1476, which seeks to allow multiple legal parents for children.
When it comes to parenting, three's a crowd. SB 1476, the "Parent-Child Relationships" bill introduced by state senator Mark Leno, which seeks to clarify judges' ability to recognize more than two legal parents for a child, is well-intended but flawed. It has passed the senate and could reach the assembly floor this month. California legislators should not support this bill.
Sen. Leno states that the need for the bill arises from a 2011 case, In Re M.C.. But that case in fact works better as a cautionary tale about the perils of multi-parent recognition rather than as an argument for changing the law. Here's what happened: The child "M.C." was during a brief affair conceived to Melissa and Jesus and born during Melissa's short, tempestuous marriage to another woman, Irene.
Sadly for this child, chaos ensued, and the child was placed in protective custody. The biological mother Melissa had substance abuse and mental health problems. Worse, she was charged as an accessory to a stabbing attack on Irene, resulting in incarceration for Melissa and hospitalization for Irene. Irene herself appeared little interested in the child and, in the words of the appellate court,"likely developed a superficial attachment, at best, to M.C. when the newborn lived with her for three weeks." The presumed father, Jesus, had helped Melissa, acknowledged the child as his own, sent the mother money, and encouraged his own parents to reach out. Nevertheless, he had moved to Oklahoma for work so had not attached to the child. In a case addressing reunification services, the question arose: Who were the legal parents?
Applying California's Uniform Parentage Act, the trial court found that both Irene and Jesus qualified as presumed parents. (As the biological mother, Melissa's legal status was not in question.) Since this finding resulted in three parents, under state law the court was then to cut the number to two by resolving competing presumptions based on the "weightier considerations of policy and logic..." While resolving this case in favor of Jesus would seem to make sense, the court instead left all three parents standing. So the appellate court sent the case back to the trial judge, saying that under state law a child cannot have more than two legal parents, and that it is properly the legislature's role to change the law.
Sen. Leno's bill is one legislator's well-intentioned response to the court's invitation. And the bill does a few good things. It seeks to clarify the complex presumptions in the law relating to paternity. Moreover, where the parents aren't fit custodians, it establishes a sensible preference for non-parent adults who are already caring for kids over anyone else.
But the bill goes wrong in allowing courts to confer full parental status on more than two people. The "rule of two" for assigning legal parenthood has rarely been breached, for good reason. Again, consider In Re M.C.. Reunification is always challenging; here, it is unlikely to succeed with anyone except (possibly) the biological father. Is it really wise to deploy already-strained government resources toward three parents? And what if, in another case, reunification with all three parents were achieved?
The problems would then multiply. It is hard enough for even two parents to agree on how to raise a child. Three parents in conflict would be still worse. Constant judicial involvement in decision-making would be the unintended but entirely predictable consequence. If there were a custody battle, the child might end up being shuttled between all of them. In fact, a Pennsylvania court has ordered custody to be shared among three legal parents.
And why stop at three? Senator Leno's bill places no limit on the number of possible parents. If three's a crowd, four or more is a mob.
There are better ways to protect children without conferring full parental status on three or more people. The doctrine of "equitable estoppel" has been used to prevent adults from shedding responsibility for children they promised to support. More explicit agreements between adults agreeing to share responsibilities for children can be enforced, as long as they don't trample parents' rights. Guardianship is another way to protect children while limiting the number of legal parents.
Prominent LGBT rights organizations have come out in support of this bill, but the issues it addresses are not limited to same-sex couples. For example, In Re M.C. would not have been different if already-pregnant Melissa had married a man. The ambiguity about who is the legal parent, the biological father or (in that case) the husband, would remain. And in either case, the court should make that decision.
Courts are dealing with complex and often tragic situations. The search for responsible adults can tempt judges into "discovering" additional parents. But the law should continue to use, and refine, more precise instruments to assist children without warping the sound "rule of two."
John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law, and co-author of the forthcoming "Same-Sex Legal Kit for Dummies." Elizabeth Marquardt of the Institute for American Values is author of "One Parent or Five?"
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