April 01, 2018 Multiparent

How Many Parents?

By: Tiffany L. Palmer

Today's families are raising children in increasingly diverse and constantly evolving family forms. Divorce, cohabitation, remarriage, LGBT marriage equality, assisted reproduction options, and other reflections of social change are producing scenarios in which children are increasingly being parented by more than two people. Sometimes multiparenting situations arise out of circumstances that develop after a child is born. A newer trend, however, one in which a family is formed with three or more co-parents by choice prior to conception, is emerging. Assisted reproduction options, for example, may result in individuals deciding together to conceive a child who will have more than two parents. How the law recognizes these multiparent families varies significantly across the country, but many legislatures and courts are responding to these social trends with legal findings that a child may have more than two parents or have two legal parents and a third person who is legally recognized as having some parental rights and responsibilities.

Formal and affirmative recognition of legal parentage comes with significant financial rights and benefits, including the right to seek child custody, Social Security benefits, and inheritance rights, and to make medical and important legal decisions for a child. It also comes with the responsibility and obligation of child support. The vast majority of states, however, still only recognize two individuals as legal parents even though, in today’s modern families, it is quite common to have more than two people parenting a child.

Multiparent Families By Chance

For many years, courts have recognized the rights of parental figures as third parties to seek custody for children they have formed parental bonds with during a period of cohabitation with the child’s legal parent. The terminology varies from state to state, but the concept is similar and provides a person other than a legal parent standing to seek custodial rights to a child where that person has acted in the place of a parent. For example, New Jersey refers to such individuals as “psychological parents,” as discussed in V.C. v. M.J.B., 748 A.2d 539 (2000). Pennsylvania uses the term “in loco parentis,” as discussed in T.B v. L.R.M., 786 A.2d 913 (2001). Other states have enacted statutory provisions that address this type of standing, including Arizona, Ariz. Re. Stat. Ann. § 25-409; Colorado, Colo. Rev. Stat. § 14-10-123; and Indiana, Ind. Code § 31-9-2-35.5.

In contrast, some states, such as Tennessee, severely limit or do  not  recognize such rights. See In re Thompson, 11 S.W.3d 913 (Tenn. Ct. App. 1999, appeal denied, Jan. 24, 2000). The Tennessee Supreme Court has declined to review subsequent cases that could have overturned this 1999 decision. Other courts, however, are examining prior decisions and redefining the definition of parent to include nonbiological, nonadoptive co-parents. Most strikingly, in 2016 in Matter of Brooke S.B. v. Elizabeth A.C.C., 28 N.Y.3d 1 (2016), New York’s Court of Appeals overruled the twenty-five- year precedent of Alison D. v. Virginia M., 77 N.Y.2d 651 (1991), by reversing Matter of Brooke S.B. v. Elizabeth A.C.C., 129 A.D.3d 1578 (2015) and affirming Matter of Estrellita A. v. Jennifer L.D., 123 A.D.3d 1023 (2014). The court stated that “where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law Section 70.” However, the court left open questions of multiparent families such as those raised by situations where a biological parent later acquires a partner who assumes a parental role towards a child.

Not all courts are embracing the new “modern” family. In 2014, the Wyoming Supreme Court rejected the trend of recognizing the right to file for custody for a de facto parent. In L.P. v. L.F., 338 P.3d 908 (Wyo. 2014), the court held that a man who was not genetically related to the child he helped raise had no right to file for custody as a parent or a de facto parent when the biological mother sought to disprove his paternity.

Expansion of Rights

While courts in states such as Wyoming and Tennessee are declining to expand the definition of “parent” and the class of people who may file for custody, other state courts such as those in New Jersey are doing the opposite. In 2014, a New Jersey appellate court expanded on its psychological parent doctrine and held that three women all had custodial rights to a child. In KAF v. DLM, 96 A.3d 975 (N.J. Super. Ct. App. Div. 2014), the former domestic partner of the birth mother was awarded standing to file for custody of the child she had lived with and co-parented for years even though child had two involved and fit legal parents and one of those parents did not consent to the involvement of the domestic partner.

The child’s parents, K.A.F., the birth mother, and F.D., the adoptive mother, were a same-sex couple who separated in 2004, less than two years after the child was born. They shared custody following the separation. D.L.M. became romantically involved with K.A.F. and moved in with her immediately following the separation from F.D. D.L.M. and K.A.F. equally shared parental responsibility for the child when he resided in their home, but they separated when the child was eight years old and the birth mother severed all contact with D.L.M. D.L.M. then filed a complaint for parenting time, alleging that she was a psychological parent. The trial court judge dismissed the case on summary judgment, finding that the case turned on the lack of consent and that F.D. never consented to D.L.M.’s parental role as a psychological parent in the child’s life. The trial court held that where there are already two fit parents in a child’s life, a third party cannot claim to have been a psychological parent without the consent of both parents. The appellate division panel unanimously overruled that decision, paving the way for more stepparents to be able to seek custodial rights in the future.

Expansion of Responsibilities

This expansion of custodial rights may also bring with it expanded financial responsibilities. The in loco parentis status not only gives rise to a right to seek custodial time after a separation but may also trigger an obligation to pay child support. Unclear roles in assisted reproduction conception with known donors can sometimes result in unintended consequences and obligations. If a couple does not enter into a contract with a known donor and does not file a subsequent adoption and the donor remains involved in the child’s life, the donor may be a father in the eyes of the law and have parental rights and responsibilities.

A Pennsylvania appellate court addressed this question over a decade ago. In Jacob v. Shultz-Jacob, 923 A.2d 473 (Pa. Super. Ct. 2007), a lesbian couple conceived two children through donor insemination, using a friend as a known sperm donor. The couple subsequently separated, and a custody dispute ensued. The biological mother received shared legal and primary physical custody of the children, and her former partner received shared legal custody and partial physical custody based upon her in loco parentis status with respect to the children. The sperm donor was awarded partial physical custody of the children based on his involvement after they were born.

After the custody determination, the court addressed the support obligations of the parties. The biological mother sought child support from her former partner, and the former partner sought to join the sperm donor in the support action, arguing that he was essentially a third parent to the children. Her request for joinder was denied by the trial court, and an appeal of both the custody and support orders was initiated. The superior court held that the sperm donor should have been joined   in the support action as an indispensable party because his obligation to provide support is statutorily imposed as a biological parent. The court noted that the sperm donor’s involvement with the children was beyond the merely biological. The court relied upon the fact that the donor had maintained a relationship with the children, contributed to their financial support, and encouraged the children to call him “papa.” The court affirmed the award of custody and remanded it to the trial court with directions that the sperm donor be joined as an indispensable party and that the support computation be recalculated to factor in all three parties’ incomes, thus opening the door for “three-parent” support orders.

Multiparent Families by Choice

Multiparent planned families take many forms, but one type involves a same-sex couple who conceives a child with an involved third person who shares a biological connection with the child and who, unlike a donor or surrogate, chooses to co- parent. Additionally, polyamory, the practice of being in intimate relationships with more than one partner with the knowledge and consent of all partners, may result in a co-parent arrangement if the family unit decides to have a child together.

Even members of a planned multiparent family may later find themselves in a court conflict. DG & SH v. KS, 133 A.3d 703 (N.J. Super. Ct. App. Div. 2015), concerned Sam and Darren, two men married to each other, who decided to have a child with Kitty, their best friend, who was to serve as a traditional surrogate. Their situation is an example of an arrangement that started as a modern love story and ended in a court custody battle. The three decided to conceive a child with Kitty’s egg and Darren’s sperm. It was the parties’ intention that all three would be parents. Five years later, however, problems arose when Kitty fell in love with a man who resided in California and sought to relocate there. The court acknowledged the original intention to form a “tri-parenting” relationship and held that Sam, the nonbiological father, was a psychological parent to the child and stood in parity to legal parents. Although this family had originally intended for the child to have three parents, the court declined to create a legal parent in Sam, holding “This court does not have the jurisdiction to create a new recognition of legal parentage other than that which already exists—genetic contribution, adoption, or gestational primacy.” However, the court did conclude that the three parties should have equal legal custody and residential custody of the child, and Kitty’s request to relocate to California was denied.

The majority of courts examining multiparent families hold, as the court did in DG & SH v. KS, that even in a situation where a child views three people as parents, the law may still only view two of them as full legal parents. This may be changing. A handful of states have granted “third-parent adoptions” that affirmatively recognize three full legal parents. Such adoptions have been granted in Alaska, Florida, Oregon, Massachusetts, and Maryland. They typically involve two women in a couple who conceive a child with a man who, unlike a sperm donor, wants to retain full parental rights and responsibilities. These adoptions create three full equal legal parents, with all the rights, responsibilities, benefits, and obligations of legal parenthood.

Legislative Developments

Legislative changes are also opening the door to full legal recognition of arrangements in which children have more than two parents. In recent years, a few states have gone so far as to enact statutes that codify this trend. California was the first state to do so, and in 2013, it enacted amendments to California’s Uniform Parentage Act to state explicitly that a court may find a child to have more than two legal parents. Cal. Fam. Code § 7601(c). It further clarified how existing custody and child support rules would apply to scenarios where there are more than two parents. Cal. Fam. Code § 7601(d). Since then, Maine has followed with an updated, comprehensive statutory framework for determining a child’s legal parentage, which also provides that a child may have more than two legal parents. The Maine Parentage Act, Me. Stat. tit. 19-A, ch. 61, which took effect in July 2016, codifies the many permutations and realities of the lives of children that may result in having more than two people who are parents to them. It contemplates assisted reproduction conceptions and de facto parents, and it clarifies martial presumptions in a gender-neutral manner.

Other states may follow, as the newest version of the Uniform Parentage Act (UPA), approved in July 2017 by the National Conference of Commissioners on Uniform State Laws, specifically includes a proposed provision for a child to have more than two   legal parents. Section 613 addresses competing claims of parentage. Section 613(c), Alternative B states: “The court may adjudicate a child to have more than two parents under this [act] if the court finds that failure to recognize more than two parents  would be detrimental to the child.”

Some states may already be incorporating this new UPA version into their statutory laws. For example, in 2017, Vermont enacted legislation to establish a “Parentage Study Committee” to examine and provide recommendations about how to modernize parentage laws in recognition of the “changing nature of families,” and this may result in statutory recognition of more than two parents. In January 2018, the “Vermont Parentage Act” was introduced through House Bill 562 in the Vermont General Assembly. Washington State also has pending legislation in the Senate through Senate Bill 6037 - 2017-18, introduced in January 2018, to adopt this newest version of the 2017 UPA, paving the way for a more expansive legal recognition of all the variations of modern families. fa

Proactive Legal Planning to Avoid Future Legal Challenges

Absent formal recognition and establishment of legal parentage, certain rights and responsibilities can be created for a third party who is acting in a parental capacity through custody and support agreements, consents to medical treatment for minors, and estate planning tools such as guardianship nominations or designations. Since the laws governing legal parentage vary significantly from state to state, clearly establishing the parent-child legal relationship may protect the family from future challenges to parentage, custody, child support, and inheritance rights, among other issues. Attorneys experienced in representing multiparent families and in assisted reproduction laws can help clients understand and secure their parental rights by exploring legal ways to recognize custodial or guardianship rights. Such proactive legal planning may prevent custody conflicts and challenges to standing and parentage and may protect a child’s established bonds with a person who is a parent in his or her eyes even if that person is not a parent in the eyes of the law.

Additionally, for families conceiving through assisted reproduction arrangements with third parties, legal consultation is recommended (and sometimes required by fertility clinics). Contracts governing the rights, responsibilities, and intentions of the parties involved should be entered into prior to the conception of a child. The laws governing assisted reproduction vary significantly from state to state and may result in unintended consequences if parties are not aware of jurisdictional  differences. Gestational surrogacy agreements are enforceable in some states and not in others. For example, in 2015, an appellate court in Pennsylvania clarified the enforceability of gestational surrogacy agreements in In Re Baby S. 128 A.3d 296 (Pa. Super. Ct. 2015), while other states such as New Jersey have longstanding precedents that remain a legal bar to entering into enforceable surrogacy contracts. See In Re Baby M., 537 A.2d 1227 (N.J. 1988). If an agreement is deemed to be unenforceable, a “surrogate” will then be a legal mother.

New Jersey’s public policy bar to recognition of gestational surrogacy agreements may, however, be changing soon. In January 2018, the New Jersey Gestational Carrier Agreement Act was introduced in the New Jersey Senate as a comprehensive statute to recognize and enforce gestational carrier agreements and bring New Jersey out of the 1980s by superseding the Baby M case. It is expected to pass and be signed into law by the new Governor Phil Murphy.

The   traditional   surrogacy   arrangement, in which a surrogate is genetically related to the baby she is carrying, remains riskier in terms of legal validity, and such arrangements are rarely  enforceable to terminate the parental rights of the surrogate. See, e.g., Rosecky v. Schissel, 822 N.W.2d 883 (Wis. 2012). Clearly delineating how many parents a child will have and who are intended  to be those parents within the bounds of the laws of the state that allows such arrangements may prevent future conflicts over parentage in such assisted reproduction arrangements.

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Tiffany L. Palmer

TIFFANY  L.  PALMER  (tpalmer@jplaw.com) is a partner and founding member of Jerner & Palmer, P.C. Her practice is focused on family formation through adoption and assisted reproduction law, as well as on litigation involving legal parentage issues and complex family law dissolution cases. Tiffany currently serves as the director of the National LGBT Bar Association’s Family Law Institute.