May a child have more than two parents? This question has been pondered for many years by legal practitioners advising same-sex couples. The issue has gained some prominence with a judicial decision finding a child to have three legal parents, each parent having full custodial rights, and in another case, a judgment of parentage declaring a married same-sex couple and their surrogate to be equal parents to a child.
Who is a parent? In some jurisdictions, a parent is defined by statute; in others, by case law. Historically, though, a parent was an individual biologically or legally (i.e., through adoption) related to the child. The definition of parent has expanded to include those who play a parental role in a child’s life, such as someone who, with the biological or legal parent’s consent, has formed an emotional bond with the child, lived with the child, and provided financial support for him or her. In essence, such a strong bond has emerged between the child and the putative parent that the biological or legal parent is precluded from arguing that the other person is not a parent.
A boyfriend and a girlfriend are not included in such a definition, due to the tenuous nature of the relationship. Similarly, stepparents are not included since the child’s “parents” are already identified. And paid child care providers obviously do not fall within the definition of parent either.
The cornerstone of any test to determine if an individual is a parent to a child (if not biologically or legally related) is that the biological or legal parent “consented” to the other adult raising their child in a family unit. The one who receives consent to parent must actually accept the offer, either formally in writing or by his/her actions (that is, actually parenting) to raise the child together. Once the consent is offered and accepted, and the parties raise a child together, those parties are the child’s parents.
The consent may be manifest in a formal document signed by the parties; alternatively, such consent may be evidenced by the manner in which the parties raise their child, as shown by birth announcements, holiday and birthday cards, pediatrician and school records, photographs, health insurance enrollments, portrayal of the family to the community, and a child’s identification of his or her parents. Thus, that which is done cannot be undone.
If the parties are married when the child is born, and either or neither parent is biologically related to the child, the child is nonetheless presumed to be a child of the marriage, meaning each spouse is a parent of the child. While this doctrine, known as the presumption of legitimacy, has historically applied to heterosexual married couples, the U.S. Supreme Court recently found that same-sex married couples are entitled to utilize the presumption of legitimacy to declare their parental rights. Most important, the fact that one spouse in a same-sex marriage is not biologically related to the child does not automatically rebut the presumption.
Based on these basic principles, how many parents can one child have legally? If a married same-sex couple use a surrogate, then arguably, each spouse and the surrogate birth mother are all parents of the child born during the marriage. What if the same-sex couple had sperm and egg donors and used a surrogate? The donors, who are biologically related to the child, have a claim to be declared a parent of the child born through their biological connection. Add to that the surrogate and the couple, and five individuals could claim full custodial rights to the child.
Is having five parents in the best interests of a child? Custodial rights are essentially broken down into two categories: (1) When is a child with a parent, i.e., the visitation schedule; and (2) How are “major” decisions made for a child. Thus, arranging a child’s time with their parents (midweek, weekend, holiday, and vacation time) can become more challenging dealing with five parents’ and a child’s schedules than with just two parents’ and a child’s schedules.
Equally challenging is managing five opinions on a major decision for a child and how a resolution is defined. While challenging, establishing a viable schedule for a child to see parents as well as allowing parents a voice in how their child is raised can be achieved with creativity and trust. Even apportioning a child’s financial support among his or her parents can be accomplished with little burden to the parents but maximum economic effect for the child.
In the end, provided the adults consent — and this is critical to any finding of parentage — there does not appear to be any meaningful legal impediment to a child having more than two parents.
ERIC WRUBEL is a partner at Warshaw Burstein LLP, where he chairs the firm’s matrimonial and family law practice. He has won two landmark cases over the past two years expanding the rights of same-sex parents.