October 15, 2013
The legalization of same-sex marriage seems to be a trend taking hold in an increasing number of states. The change represents a significant shift for family law, with many attorneys and judges in the field scrambling to figure out how these changes will impact specific areas of the law.
One such area is child custody, which is a somewhat more problematic question in a same-sex custody dispute since (under current technological limitations, at least) it is not possible for two members of the same-sex to procreate.
Since biological parents have inherent parental rights under the law, these cases often entail questions about not two, but three or more parents.
However, the law is structured to only recognize two legal parents at any given time. Thus, a biological parent must terminate his rights for the non-biological parent (the same-sex spouse of the other biological parent) to be legally recognized as a parent.
Clearly, this can create problems if, for whatever reason, the non-same-sex-spouse biological parent (I apologize for all of the hyphenated adjectives) still wishes to be involved in the child’s life.
Earlier this month, California passed a new law that squarely addresses that issue.
In its own words:
This bill would provide that a child may have a parent and child relationship with more than 2 parents. The bill would require any reference to 2 parents to be interpreted to apply to all of a child’s parents where a child is found to have more than 2 parents, as specified.
Unquestionably, this law allows for the recognition of the biological parent in addition to the same-sex-spouse parents, which it accomplishes by removing the two parent legal limitation.
But does the law open a whole new can of worms?
After all, family law is all structured under the assumption that there are no more than two parents: child support calculations and child custody determinations both operate on the premise that there are only two parents.
My initial reaction as a family law practitioner was that this law would completely turn the family law field on its head. However, once I started thinking about it more – and read the full text of the law – I realized that these changes aren’t quite as earth-shattering as I had initially thought.
First of all, while the law allows a child to have more than two legal parents, it does not “change any of the requirements for establishing a claim to parentage under [California’s] Uniform Parentage Act.” In other words, the only limitation that this removes on a parent’s ability to adopt a child is the aforementioned two-parent ceiling. All of the other rules still apply.
Another issue that I initially believed to be created by this law was the complication of the definition of the “custodial parent.” Specifically, in jurisdictions only recognizing a two-parent maximum, the custodial parent is typically identified as the one having 50% or more parenting time with the children. Under California’s new law, though, this number would appear to be closer to 34%.
Why does this matter? The custodial parent often enjoys additional parental rights – some financial in nature, and some social (i.e. relating to custodial and parenting time rights). Courts also like to generally identify a custodial parent because it allows the court to feel that the children have a sense of stability despite the split parenting time arrangement.
After thinking about the issue more, though, I realized that there are other factors that help to define the custodial parent, such with whom the child has primarily lived in the past, or with whom the child keeps most of his or her possessions, or at whose residence the school bus drops the child off (although there may be more than one house in some cases). The law doesn’t significantly alter any of these identifiers.
Yes, the law may still muddle the definition of custodial parent and require a little more work on the part of attorneys and judges, but the best interests test still prevails. That is, the court still has full discretion to decide the custodial arrangement such that they are in the best interests of the children.
In fact, the best interests test is referenced to and relied upon several times throughout the law – as though the whole point of the law was to allow judges to more fully rule in favor of the best interests of the children in family law disputes.
If you look at the motivation behind the law, better serving the children’s best interests in family court actually seems to be the point of the law.
Here’s the short version of the story providing the impetus for this law: a lesbian couple was involved in a physical domestic dispute, resulting in one being hospitalized and the other being jailed. Their daughter was sent to foster care because her biological father did not have parental rights.
In other words, this law was passed because of new custodial arrangements created by same-sex marriage and adoption. And, upon closer analysis, it appears that such a law should go hand-in-hand with the legalization of same-sex marriage and adoption.
As such, it seems to be only a matter of time until other states that have legalized same-sex marriage adopt a similar law to California’s.