New California Legislation: A Child may be Found to Have More Than Two Parents

Who is a legal parent? A legal parent exists when there is a parent and child relationship between a child and his or her natural or adoptive parents. Where a parent child relationship is found, there are certain rights, privileges, duties and obligations of the parent. The parent child relationship includes the mother and child relationship and the father and child relationship. A parent child relationship always exists between a biological mother and child. Additionally, the spouse of the child’s mother is conclusively presumed to be the parent of the child if he/she was married to the biological mother and living with her at the time of conception. A man or woman other than the biological mother may also be a presumed parent if he or she signs a voluntary declaration of paternity, marries the mother or attempted to marry the mother before or after the birth of the child or if he/she receives the child as his/her own and openly holds the child out as his/her own. Previously, California law only allowed for two people to be recognized as the legal parents of a child.

Following the enactment of Senate Bill No. 274, Chapter 564, in late 2013, courts have the power to find that a child may have more than two legal parents. Prior to this new legislation, if there were two competing presumptions, other than the biological mother, the court had to choose which one should be deemed a parent. Now, the legislature has recognized that while most children have two parents, in rare cases, children may have more than two people who are that child’s parent in every way. Further, “separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.” SB 274, Section 1 (a). Thus, “where more than two people have claims to parentage, the court may, if it would otherwise be detrimental to the child, recognize that the child has more than two parents.” SB 274 Section 1 (c). The legislature specifically noted that “this bill will only apply in the rare case where a child truly has more than two parents, and a finding that the child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents.” SB 274 Section 1 (d).

What would a situation where a child has more than two legal parents look like? In the case of In re M.C. 195 Cal. App. 4^th 197, which was the case that this new legislation specifically overruled, prior to his birth, M.C.’s mother, Melissa, was in a dating relationship and later a domestic partnership with a woman named Irene. At some point they separated and Melissa became involved with a man, Jesus. While dating Jesus, Melissa became pregnant with M.C. Melissa lived with Jesus for the first four months of her pregnancy. During that time, she dissolved her domestic partnership with Irene and filed a restraining order against Irene. Two months later, Melissa and Irene reconciled and got married in October 2008, during the six month window when same sex marriage was legal in California. M.C. was born in March 2009. Only Melissa was listed on the birth certificate. After M.C. was born, Melissa and Irene separated again, and Irene filed for custody and visitation orders. Melissa requested another restraining order against Irene. She also reestablished contact with Jesus, who began sending support payments. Soon thereafter, Melissa’s new boyfriend attacked Irene with a knife. Melissa was arrested and charged as an accessory to attempted murder. When Melissa was sent to jail, M.C. was placed in foster care.

With M.C. in foster care, the question of who her legal parents were became an issue. Melissa was entitled to legal parent status as M.C.’s biological mother. But, she was incarcerated and suffering from bipolar disorder and substance abuse issues. That left Jesus and Irene. Irene was Melissa’s spouse at the time M.C. was born, thus she was presumed to be M.C.’s mother under California’s statutory scheme. Jesus was the biological father, but he had not physically received the child into his home. Nonetheless, he was found to be a presumed father pursuant to California case law because he had attempted to establish a relationship with the child, but was prevented from doing so by Melissa. In the juvenile court’s view, all three were thus entitled to the status of legal parentage. However, at that time, the law did not recognize more than two legal parents. Thus, the appellate court had no choice but to send the case back to the juvenile court to choose who should be found to be M.C.’s legal parent, Irene or Jesus.

In the decision, the appellate court stated that they could imagine a case where a child might be “well served by judicial recognition and preservation of a relationship with three legal ‘parents,’ all of whom love and care for her, each of whom has evinced a commitment to providing her a safe and stable family environment.” In re M.C. at 213. However, this was not such a case. None of the presumed parents in M.C.’s life had ever provided her with the consistency, stability and care that she needed. The legislature apparently recognized this in opening the door for a finding of three parents by specifically stating that a finding that a child has more than two parents may only apply in rare cases and only if it would be detrimental to the child to find otherwise.

This new legislation raises several issues and changes the way the court may decide custody in certain cases. For example, if a court finds that there are three parents, custody and visitation would need to be allocated among the three parents, according to the child’s best interests. In such a situation, a 50/50 parenting plan would not work and parents may necessarily have less time with a child than they may have previously been granted. Similarly, child support would be allocated among the three parents, according to the statewide uniform guidelines, based on the income of each parent and the amount of time spent with the child by each parent.

At Mello & Pickering, LLP, we handle custody, visitation and child support actions, whether yours is a traditional case with two parents, or a case where there are more than two parents. If you have questions regarding your situation and what your rights may be, call us to schedule an initial consultation or set up a one hour in office appointment at (408) 288-7800.