Proposed California Bill Would Have Substantial Impact on Child Custody, Support and Visitation Rights

A proposed California bill, SB 1476, would authorize California courts to recognize more than two parents per child. The bill, authored by State Senator Mark Leno (3rd Senate District), would not expand the definition of a parent under California Family Law. Rather, if more than two people qualify as a parent under the current standard, and such an arrangement would be in the “best interests of the child”, then the judge would be empowered to find more than two people to be the child’s parents.

The bill would entitle the child to support from all her parents and would allocate custody and visitation rights among the parents based on the “best interests of the child.” Supporters of the act comment that the legal acknowledgment of more than two parents would equip the court with additional options for placement of the child which may keep the child out of foster care. Opponents are concerned that the proposed bill would overly confuse children and would have possible unintended negative consequences in other contexts such as taxation and citizenship issues. Currently, only Maine, Delaware, Pennsylvania and the District of Columbia recognize more than two parents.

The clear impetus for the proposed bill was a 2011 California Court of Appeals case, In re MC, 195 Cal.App.4th 197 (2011), in which the court refused to recognize a child as having three legal parents. The case revolved around a girl who had two mothers; the child’s biological mother and the mother’s domestic partner who was a statutorily “presumed” mother under California Family Law. The biological father conceived the child with the biological mother while the two women were temporarily separated. As a result of the biological mother’s involvement in an assault on the girl’s presumed mother, the child was placed in foster care. The child’s biological father subsequently brought a claim to gain custody of the child, which was denied. Therefore, the state maintained custody of the child.

The court referenced the “rapidly changing familial structures” and unfortunate factual circumstances of this case as policy reasons for allowing a child to have three parents. However, the court firmly stated that there is no current legal framework for such an arrangement and any changes to the statute would have to be made by the legislature.

Under the current California Law, The Uniform Parentage Act (UPA), only the mother and “presumed parents” have legal status as “parents.” The most common “rebuttable presumptions” under which a person would qualify as a “parent” are: 1) if the person was married to the mother of the child during or immediately prior to the child’s birth or, 2) the person “receives the child into his home and openly holds out the child as his natural child.” If there is more than one “presumed parent,” then the court would only recognize the one that is more persuasive based on logic and policy considerations. California Family Code § 7610-7614.

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