SAN DIEGO, September 30, 2012 – California Governor Jerry Brown vetoed legislation today that would have allowed children to have more than two legal parents.
Senate Bill 1476 by State Senator Mark Leno would have allowed judges to recognize more than two legal parents if it is determined to be “required in the best interests of the child.” It would have allowed 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.
In his veto message, Governor Brown urged the proponents to go back and work on the bill to prevent unintended consequences. “I am sympathetic to the author’s interest in protecting children,” he wrote. “But I am troubled by the fact that some family law specialists believe the bill’s ambiguities may have unintended consequences. I would like to take more time to consider all of the implications of this change.”
But we are wrestling as family law attorneys with technological and societal realities that didn’t exist a generation ago. The law must catch up. Without this legislation (as usual it seems), it is the children affected left out in the cold. The legal system and its judges still have no real ability to help them. When a child ends up being 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?
Senator Leno has said he wanted to bring California into the 21st century given the reality of surrogate births, same-sex marriage and parenthood, assisted reproduction and other changes in medicine and society that create new possibilities for nontraditional households.
Leno says his legislation would not have changed 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.
As I wrote in a previous column, the law did present 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 the legislation, the biological father could apply for custody rights.
What the opponents argued about was the potential increase in court cases and costs, bitter and messy fights over custody that would tie up increasingly valuable court time and cost taxpayers more money for court budgets. Opponents pointed out that the bill didn’t consider problems with tax deductions, Social Security, inheritance and probate, wrongful death and education benefits, and determining child support.
We have plenty of messy cases and unintended consequences right now. Today’s family relationships are extremely complex. In the almost 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 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.
The law would have brought 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.
The problems Governor Brown expressed concern about simply haven’t materialized the states where similar laws exist, including the District of Columbia, Delaware Maine, Louisiana and Pennsylvania.
Governor Brown should have conferred with experts in the other states where similar law are working well before his veto decision. Meanwhile, families, attorneys, and judges in California will be left to muddle through on their own as they did before.
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.
Copyright © 2014 by Fleischer & Ravreby, Attorneys at Law
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