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May 10, 2021 Feature

Who Is a Parent?

Douglas NeJaime

Legal parents generally have standing to seek custody. Therefore, the determination of parentage has important implications for ongoing relationships between children and their parents. Some nonparents or third parties have standing to seek custody or visitation—standing that varies significantly across jurisdictions. But the discussion that follows is limited to parents.

Parentage in Historical Perspective

Historically, Anglo-American law regarded marriage as the exclusive domain of parentage. Without adoption—itself a nineteenth-century American innovation—only married individuals possessed legally cognizable parent-child relationships. A married woman who gave birth to a child was treated as a legal mother, and her husband—pursuant to the marital presumption or presumption of legitimacy—was treated as a legal father. Of course, the presumption reflected the assumption that the mother’s husband was the child’s biological father. Yet it was never simply about identifying the biological parent. Historically, the rule was effectively conclusive, self-consciously operating to render contrary biological facts irrelevant.

This approach to the marital presumption made sense against the backdrop of a legal regime that treated nonmarital children as “illegitimate,” lacking legal rights to parental support or inheritance. Eventually, and after some state-level legislative reform, the Supreme Court repudiated this discriminatory regime on constitutional grounds. The Court recognized legal rights for nonmarital children and accorded legal status to unmarried parents. In the closing decades of the twentieth century, state laws continued to evolve in dialogue with constitutional precedents on the rights of unmarried fathers.

Contemporary Family Patterns

The American family continues to change. Today, fewer children are being raised by a biological mother and father in a marital unit. Family arrangements that depart from conventional norms have become more common.

Greater numbers of parents—still largely women but increasing numbers of men as well—are raising children as single parents. Rates of nonmarital cohabitation have continued to rise, and a larger share of unmarried couples are raising children together. Today, roughly 40% of children are born to unmarried parents.

For those parents who are married, divorce remains common. Subsequent partnerships or marriages produce blended families and stepparent relationships.

Openly LGBT people are raising children in numbers not seen in previous generations. The Williams Institute estimates that nearly 220,000 children under 18 are living in a household headed by a same-sex couple.

Assisted reproduction is now common not only among same-sex couples but also among different-sex couples and single individuals. The Centers for Disease Control and Prevention (CDC) reports that more than 80,000 children were born through assisted reproduction in 2017. (The CDC includes children born through in vitro fertilization (IVF) but not through the relatively common method of donor insemination and therefore significantly undercounts the number of children conceived through assisted reproduction.) The use of IVF, third-party egg and sperm, and surrogacy has exploded. These developments have meant that many parents are raising children to whom they are not biologically related.

Parentage Law

Some states have endeavored to keep up with the realities of American families, reforming and updating parentage laws to reflect the varied ways individuals have children. Others have resisted change and, in doing so, have left parents and children vulnerable. Still others have charted a middle course, updating parentage laws only partially.

The following discussion catalogues different classes of legal parents. Of course, not all of these parental statuses exist in every jurisdiction, and the contours of each also vary across jurisdictions that maintain them. Moreover, some of these statuses overlap, as an individual may have multiple bases on which to be deemed a legal parent.

Notably, an action in which a person seeks custody of a child may also be one that requires the person to seek an adjudication of parentage. That is, the party seeking custody may first have to establish parentage.

Adoptive Parents

Every state recognizes that an adoptive parent is a legal parent. Provided that the adoption complied with state law and constitutional requirements of due process, the adoptive parent’s status cannot be challenged outside of a proceeding to terminate parental rights.

Presumed Parents

The law may presume an individual to be a parent. A marital presumption exists in every state, either through common law or statute (or both). Accordingly, if the person who gives birth is married, her spouse is treated as a legal parent.

While traditionally the presumption rendered a birth parent’s husband the legal father, today the presumption also captures female same-sex couples, such that the same-sex spouse of the birth parent is deemed a legal parent. Legislatures in some states have reformed their parentage laws to be explicit about the gender-neutral application of the marital presumption. Some have done so by adopting the 2017 Uniform Parentage Act (UPA), which provides that “[a]n individual is presumed to be a parent of a child if . . . the individual and the woman who gave birth to the child are married to each other and the child is born during the marriage.” In states where lawmakers have not expressly updated their parentage laws in this way, courts have stepped in. Some courts have interpreted the marital presumption to apply in a gender-neutral manner. Other courts have held that failure to apply the presumption to a same-sex spouse violates constitutional guarantees of equal protection and due process. Indeed, even the U.S. Supreme Court has held that a state that treats a birth mother’s husband as a parent, regardless of whether he is the biological father, must also treat a birth mother’s wife as a parent.

Today, the marital presumption may be rebutted. Challenges may be brought not only by the presumed parent, but also by the birth parent or the biological father. In cases where the child was not conceived through assisted reproduction, biological evidence may be used to rebut the presumption. Still, states vary on how much weight to place on biological facts. Judges often make a determination based on the best interests of the child and will preserve the relationship between the child and her nonbiological father. Some states will not even entertain a challenge to the presumption if it is not brought within the first two years of the child’s life, regardless of when a party discovers there may be a reason to question paternity.

In many states, there is not only a marital but also a nonmarital presumption of parentage. This presumption, commonly referred to as the “holding out” presumption, traditionally treated a man as a father if he received the child into his home and held the child out as his natural child. Originally, the “holding out” presumption captured unmarried biological fathers—providing a mechanism by which to comply with newly announced constitutional mandates.

More recently, the presumption has applied in a nonbiological and gender-neutral manner. Since 2002, courts in California, Colorado, Massachusetts, New Hampshire, and New Mexico have interpreted their nonmarital presumptions in this way. A growing number of states, including those that have adopted the 2017 UPA, have codified a “holding out” presumption that explicitly applies to biological and nonbiological mothers and fathers, treating an individual as a parent if the individual resided in the same household with the child and openly held out the child as the individual’s child.

In some states, such as California, the statutory presumption requires that the presumed parent reside with and hold out the child at some point during the child’s minority. In other states, the statutory presumption requires co-residence and holding out to occur for the first two years of the child’s life.

In many jurisdictions that recognize parentage based on “holding out,” a person shall be adjudicated a parent if the person satisfies the presumption and no one challenges the person’s parentage. The presumption may be challenged by the alleged presumed parent, the other legal parent, or another party claiming parentage. Biological evidence may be used to rebut the presumption. Still, courts have ruled that evidence that the presumed parent is not the genetic parent does not necessarily rebut the presumption.

Biological/Genetic Parents

An individual may seek parentage based on being a biological or genetic parent. In every state, by virtue of common law, statute, or both, a person who gives birth to a child is treated as a legal parent. In a growing number of states, this general principle has a notable exception if the person who gives birth was acting as a surrogate.

Biological paternity also provides a common basis on which to establish parentage. Voluntary acknowledgments of paternity (VAPs), which states are required to maintain as a condition for federal funding, are the most common way that paternity for nonmarital children is established. VAPs have the force of a legal judgment of parentage. To be valid, the VAP must be signed by the birth parent and the alleged genetic father, who attests to his status as the biological father and waives his right to genetic testing. While a VAP may be rescinded up to 60 days after signing, thereafter it can only be challenged based on fraud, duress, or material mistake of fact. The relevance of biological evidence to challenges to VAPs varies by state, but courts in many jurisdictions have rejected challenges that are based on the mere fact that the acknowledged father is not the genetic father and knew so at the time he signed the VAP.

For those biological parents who are not birth parents, presumed parents, or acknowledged parents, an adjudication may be required to establish parentage. The birth parent, alleged genetic parent, or child may bring an action to establish parentage during the child’s minority. In circumstances in which the birth parent seeks government aid, the state also has standing to establish parentage and thus seek support.

Intended Parents

Every state has a mechanism for recognizing intended parents who have children through assisted reproduction. This is especially important for those who are not birth parents or genetic parents.

In every jurisdiction, a man who consents to his wife’s insemination with donor sperm is deemed the legal father of the resulting child—by virtue of either the marital presumption or a statute specifically regulating assisted reproduction. In most jurisdictions, a larger group of intended parents engaging in assisted reproduction are recognized as legal parents. For example, in a growing number of states, an individual is treated as a legal parent if the individual consented to assisted reproduction by a woman with the intent to be a parent of the resulting child—regardless of the individual’s marital status, gender, or sexual orientation. This approach is consistent with both the 2017 UPA and the ABA’s 2019 Model Act Governing Assisted Reproduction.

Intended parents can, in many states, obtain a parentage judgment to secure their parental status. In a few states, nonbiological intended parents are authorized to establish parentage through a voluntary acknowledgment of parentage. This approach to VAPs is especially important to unmarried same-sex couples, in which the nonbiological mother would otherwise have to adopt her own child.

Statutes treating intended parents as legal parents by operation of law generally apply to forms of assisted reproduction other than surrogacy. Surrogacy instead is regulated through a separate legal framework or is simply unregulated by parentage statutes.

Almost half of states permit and regulate gestational surrogacy, in which the person serving as the surrogate is not genetically related to the child. While some jurisdictions limit access to gestational surrogacy, the clear trend is to include intended parents without respect to genetic connection, medical infertility, marital status, gender, or sexual orientation. This approach is reflected in both the 2017 UPA and the ABA’s 2019 Model Act Governing Assisted Reproduction. Provided the parties comply with the state law’s requirements on gestational surrogacy arrangements, the intended parents will be treated as the child’s legal parents. Many states allow intended parents to obtain a pre-birth parentage order, which takes effect when the child is born.

While a growing number of states regulate gestational surrogacy in ways that treat intended parents as legal parents, very few jurisdictions do so with respect to genetic surrogacy, in which the person serving as the surrogate is genetically related to the child. In the vast majority of states, in genetic surrogacy arrangements, the nonbiological intended parent would have to adopt the child.

Functional/De Facto Parents

An individual may be recognized as a parent based on conduct. If an individual formed a parental relationship with the child and functioned as the child’s parent, she may seek an adjudication of parentage even though she is not the child’s biological parent, is not married to the biological parent, and has not adopted the child. This functional approach to parentage resonates with a child-centered perspective, reflecting concerns about the trauma inflicted on a child when her relationship with her psychological parent is severed.

Approximately half of U.S. jurisdictions provide standing to functional parents. While most use the term “de facto parent,” some jurisdictions use other labels—including psychological parent, parent by estoppel, and in loco parentis. While in many states functional parentage emerged as a judicial creation through common law and equitable principles, recently states have begun to codify de facto parentage—a move in line with the 2017 UPA.

The establishment of de facto parentage requires adjudication. In some jurisdictions, standing is limited to the individual claiming de facto parent status, and that individual must satisfy the requirements by clear and convincing evidence. Ordinarily, the individual must have resided with the child, cared for and taken responsibility for the child without expectation of financial compensation, held the child out as the individual’s child, and formed a bonded and dependent relationship with the child that is parental in nature. An individual does not unilaterally become a de facto parent; the existing legal parent must have fostered the parent-child relationship between the de facto parent and the child. While some states accord only limited rights to de facto parents, the clear trend is to treat de facto parents as full legal parents.

Importantly, a de facto parent is not a mere third party. Relatives or cohabiting partners who help out with a person’s child are not de facto parents. Instead, de facto parents have formed a parental relationship with the child.

Conclusion: How Many Parents?

Over time and in light of shifting family patterns, parentage has become a more complicated concept. Parentage is not simply a product of marital status or a biological determination. Instead, it can arise within or outside the marital family, for biological or nonbiological parents, at birth or years later, for children conceived through sexual procreation or assisted reproduction. Given the realities of contemporary family arrangements and the multiple paths to parentage, one might ask: How many parents can one child have?

Ordinarily, if two individuals have already established parentage, an additional person cannot seek parental status. If a child has only one established parent and two additional individuals have valid claims to parentage, a court typically chooses between them. For example, in conflicts over the marital presumption, a court would decide whether the husband or the biological father should be adjudicated the legal father. In many jurisdictions, the determination depends, either expressly or implicitly, on the best interests of the child.

Today, though, a handful of jurisdictions authorize a court to recognize more than two parents for a child. Each individual must have a valid claim to parentage for a court to entertain the question of multi-parentage. Then the court must find, depending on the jurisdiction, that recognition of a third parent is in the child’s best interest or that failure to recognize the third parent would be detrimental to the child.

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Douglas NeJaime is Anne Urowsky Professor of Law at Yale Law School in New Haven, Connecticut, where he teaches in the areas of family law, legal ethics, law and sexuality, and constitutional law.