Most children have two parents: a mother and a father, or two moms, or two dads. But what about a child who has three (or more) parents? It's a situation some families face. For example, a lesbian couple could have a child with a sperm donation from a close friend. The three adults may decide they all like to be involved in raising the child. How can the law protect this type of family structure?
Understanding California's third parent law
Often referred to as the "third parent law," California Senate Bill No. 274 provides protection for children and families by recognizing the legal rights and responsibilities of two or more adults in a child's life. The law is actually even more expansive than just a "third parent law," as it places no limit on the number of parents a child can have.
When drafting this law, the California legislature stated the following: "Most children have two parents, but in rare cases, children have more than two people who are that child's parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm."
That said, the law does not expand parenting rights for people who aren't already a parent of the child, which makes it unlikely that there would be more than three parents involved. For example, the law does not expand parental rights for grandparents or siblings. Rather, it allows parenthood only for people who meet the legal definition of a parent under California law. (legal parenthood or "presumed parent" law is a complicated topic and not the subject of this article.)
Upside of the third parent law: Protection for children and families
In the example above, all three adults could decide to share legal parenting rights and responsibilities. This additional recognition provides the child with more love and support, both emotionally and financially. It provides that all of the adults involved in raising the child have legal protection for their parent-child bond.
For families who have or want more than two legal parents, this law is a great thing: It provides legal recognition for adults who are acting as parents in every other way and helps protect non-traditional family structures. In addition to legal recognition of the adults involved, the third parent law protects the children involved by ensuring their relationships with their parents are seen as valid, important, and worth protecting.
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A potential downside of the third parent law
The third parent law also leaves some questions unanswered. For example, does it allow a non-intended parent to seek legal recognition and assert legal parental rights? If a couple uses a sperm donor but intends to only have two parents, does this law permit the sperm donor to seek parenting rights over the objections of the couple?
As you can imagine, this scenario would be a nightmare for many families who don't need or want additional adults interfering in your child's life or making decisions about their education, healthcare, or future. But under the specific phrasing of the third parent law, an unintended parent could claim parental rights, even if a child already has two committed parents.
When could a non-intended parent assert legal rights?
Picture a married man and a woman who are ready to have children but have discovered the husband is infertile. After much discussion, they decide to use a sperm donor to conceive a child. But they're uncomfortable with the idea of an unknown donor, so they want their donor to be someone they know. They ask a close friend if he'd be willing to donate sperm. The friend agrees, and the husband and wife use the sperm provided by the friend to impregnate the woman without the assistance of a doctor and with no written or oral agreement about parenting.
The baby is born, and the sperm donor comes over for dinner often and plays with the child. Or, maybe the donor becomes a love interest of the wife. What would happen if the friend, the biological father, decides he wants to get more involved as a legal parent and pursues a paternity judgment in the courts? Does the law allow a non-intended parent to seek parentage?
The third parent law does not require a child to have more than two parents and does not automatically create more than two parents. Instead, it allows a court to find that a child may have more than two parents. If there is an existing parent-child bond with more than two people, the court may find a child has three parents even over the objections of two of the parents.
How can families protect against non-intended parents?
The law is intended to protect families and children, not increase stress and court battles. The effects of the law are not yet settled, and things are changing quickly. There can be costs to the rights of existing parents that are incurred by recognizing additional ones. There are also potential costs to children, whose attachments to adults may be stretched too thin by the legal recognition of additional parents.
Parents can protect against possible third parent challenges by setting up binding legal agreements between involved adults before the child's birth. If parents have not prepared an agreement or find themselves in court litigating these issues, they should direct their judge to the long history of the case and statutory law focusing on the best interests and well-being of the child. Moreover, there may be a good legal challenge to the third party asserting parentage to begin with.
If you have any concerns about how the third parent law might affect you and your family, we recommend that you consult with a certified family law specialist.
