SAN DIEGO – September 19, 2012 – Before the end of the month, California could join the District of Columbia, Delaware, Maine, Louisiana and Pennsylvania allowing more than two legal parents.
Governor Jerry Brown has until September 30 to decide whether to sign Senate Bill 1476 by San Francisco state senator Mark Leno. It permits a previous custodial or biological parent to have parental rights and take care of a child if the two current legal parents are no longer capable, as long as doing so is required to protect the child’s best interests.
Leno says his legislation does not change the current legal definition of a parent in California. Currently, a parent must be biological (mother or father), adoptive, or a legal foster parent. Legal guardians, stepparents, and grandparents are also considered parents under the law.
Leno was motivated to pursue the legislation after an appellate court ruling in May 2011. The biological father of the child of a same sex lesbian couple sought custody when the couple could no longer care for the child. Originally the juvenile court granted him custody, ruling that the child in effect had three parents: the biological mother, the biological father, and the custodial mother who was legally married to the biological mother when the child was born. But he lost on appeal. It appeared the girl would be sent to foster care, but she was eventually placed in the custody of grandparents.
In a dispute over child custody, visitation or child support involving more than two parents, a judge would make any final determination. The law would apply both to straight and gay parents.
This does generate some unintended possibilities. If a man begins dating a woman who is already pregnant by another man, and helps her raise the child without marrying her while the biological father also plays a role in raising the child, under this legislation he could be granted custody in the event the biological parents become unable to do so.
It could also apply if a man marries a woman and legally adopts her child from her first marriage. The biological father still could be very much involved in the child’s life. If something happens to the legal parents, the child could now end up in foster care. Under this new law, the biological father could apply for custody rights.
A court could even decide that more than one parent has an obligation to pay child support.
Some of the opponents worry this legislation will cause an increase in court cases and costs, making bitter and messy fights over custody even more bitter, messier, and expensive, tying up increasingly valuable court time and costing the taxpayers more money for court budgets.
Let me tell you it’s already happening. It’s a fact that in today’s world, family relationships are far more complex. In the 20 years I have been practicing family law, I see a wider and wider variety of arrangements and dilemmas when trying to work out child custody, visitation and support. Courts are increasingly being called on to answer challenging new questions involving children, and they don’t have many good tools to allow them flexibility.
The law only comes into play where there is a pre-existing relationship between the child and the adult, such as a biological parent or stepparent.
We are not going to see six people trying to become a child’s parent. It hasn’t happened in the other states and it’s not going to happen even in crazy California. This law is designed to help a child who has too few parents he or she can count on, not too many. When a child is left with no alternatives but government-run foster care, why would we deny a caring adult who has a relationship with the child the right to be a parent to that child?
The law is slow to catch up with the modern universe of surrogate parents, in vitro fertilization, grandmothers bearing their daughters’ children, same-sex marriages, various forms of domestic partnerships, and all manner of step parenting and adoption.
Social conservatives worry about the camel’s nose under the tent, seeing some kind of stealth approach through children to legalizing same sex marriage in California. But it is working fine in other states, it brings California into line with some of the real-life issues that keep coming up in front of judges who lack the legal structure and guidance to deal with them in an equitable way across all of the state’s courts. This can save time, money, and possibly keep a child out of foster care and in a loving home. Taxpayers benefit from keeping a child out of the system.
Governor Brown has taken no public position on the measure yet.
Myra Chack Fleischer serves as Lead Counsel for Fleischer & Ravreby in Carlsbad, California with a focus on divorce, property, custody and support, settlement agreements, mediation, asset division and family law appeals. Read more Legally Speaking in Communities Digital News. Follow Myra on Twitter: @LawyerMyra.
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