In past blogs on this site I have detailed the challenges facing polyamorous families who could lose custody of their children and the five most common legal problems facing sex and gender minorities. This blog focuses on the changing legal landscape that could shift some of these issues by recognizing multiple legal parents.
Rule of Two
Traditionally, courts in the US and around the world have recognized the “Rule of Two” in which children are allowed two legal parents: the woman who gives birth to the child, and her husband at the time of the child’s birth. Even though adoption and informal parentage have been quite common across history and cultures, this biological model of two parents worked fine in most cases for generations. In the last 75 years, increasing use of assisted reproductive technologies (ART) and expanding social diversity among families have changed reliance on the rule of two and introduced a host of new complexities. Some courts have responded by increasing the number of legal parents a child is allowed.
There are generally two groups making multiple parents an issue internationally: people who use assisted reproductive technologies (ART) and sex and gender minorities have been at the forefront of a legal push to recognize multiple legal parents in the United States, Canada, and the Netherlands. ART users have redefined the rule of two by mixing eggs from one parent/donor, sperm from another, and the womb of another to create children with more than two biological parents. By 2012 five states (Alaska, California, Massachusetts, Oregon, and Washington) had allowed third-parent adoption. The most significant step towards multiple parenting came in 2013 when California passed SB-274, a law recognizing three (and possibly more) adults as legal parents. The law specifies that multiple legal parentage be granted sparingly, and that it “only apply in the rare case where a child truly has more than two parents, and a finding a child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents.” In 2017 a judge in New York granted three parents shared custody of a child, including the child’s non-biological mother. I discuss that decision in greater depth in part five (Child Custody) of a series on children in polyamorous families.
Even with these continued changes to the Rule of Two, access to more than two legal parents remains on a localized basis. Much like before same-sex marriage was legally recognized nationwide, parentage established in one state may not be recognized by another. This puts the legal status of SGM and ART families at risk by introducing a level of legal insecurity that is not in the best interests of children, whom courts have indicated thrive when they have ongoing contact with adults who have been acting as their parents.
In the Mean Time
Any society that undergoes as much social change as the US has experienced since the end of World War II is going to have some growing pains. It is now a social and biological reality that some children have more than two parents, and laws are lagging behind this evolving family form. ART, polyamorous, and other SGM families are bearing the brunt of this change. Families wealthy enough to protect themselves legally are safer than those without the funds to pay a good lawyer. Unfortunately, there are many families who face the possibility of losing custody of their children. For those who can’t afford legal representation, the Sexual Freedom Legal Defense and Education Fund offers some funding.
Valerie White of the SFLDEF understands many of the challenges associated with these custody battles:
Unfortunately, poly and kinky people don’t seem to be immune to the temptation to use whatever ammunition they think will give them an advantage. That ammunition often includes the practice of alternative sexual expression like polyamory or BDSM . . . even when BOTH parents participated during the relationship. We’ve found there’s no-one more sanctimonious about the value of monogamy than a formerly-poly-currently-monogamous person who wants the kids. It’s also true that oftentimes a lot of the energy (and funding) in these cases comes from the grandparents.
A non-profit run by donation, the SFLDEF is always in need of additional funds to enable their work for social justice. If you support legal equality for SGM families, please consider donating to the SFLDEF.