They say that bad facts make for bad law, but, sometimes, bad facts result in great law. In 2013, California enacted a law allowing children to have more than two legal parents. This “three parent law” paves the way for full parental rights in non-monogamous families.
Setting the precedent: the first three-parent birth certificates
Allowing a child to legally have more than two parents didn’t automatically translate to a right for non-monogamous families to list three parents on a birth certificate. In 2017, a judge in Southern California granted what was likely the first three parent birth certificate to Ian Jenkins and his partners Alan and Jeremy. The three men asked a judge to issue an order before their daughter was born allowing all three to be on the birth certificate. Although the judge was skeptical at first, their testimony convinced her. They talked about the importance of all three being recognized as legal parents, including the right for their daughter to inherit from all three, their ability to make medical decisions for her, and their desire for all three to have visitation rights if they should split up.
Other judges have followed this precedent. Amy, Lori, and Paul were able to get an order listing all three as parents on their daughter’s birth certificate – although it took almost a year for them to receive the complete birth certificate, because the certificate provided by the hospital only allowed two parents to be listed.
Who qualifies as a parent?
The three parent law does not expand the legal definition of who may be considered a parent. In California, the people who can be considered a “parent” are:
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the natural mother (the person who gave birth),
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the biological father,
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a person the natural mother was married to or in a domestic partnership with when the child was born who has held themselves out as the child’s parent, and
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in cases where a child was born through reproductive assistance, the intended parents.
This means that non-biological parents in poly or other multi-parent families may not have the legal status to be considered a parent, particularly if they are not married to or in a domestic partnership with the person who gave birth to the child.
Similarly, parental rights don’t extend to grandparents, aunts, uncles, close family friends, or anyone else who spends time with the child, even if that person is significantly involved in the child’s life. The three parent law doesn’t change this. In fact, the legislature explicitly stated that they intended that the law “will only apply in the rare case where a child truly has more than two parents, and a finding that 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.”
Finally, although the law does not cap the number of parents at three, it does not appear that any court in California has recognized more than three parents for one child. This means that families with more than three parents will need to think carefully about who should be considered the legal parent of each child.
Legal avenues for creating a multi-parent family
For families in the early stages of starting a family, obtaining a court order to include all the intended parents on the birth certificate is a vital way to preserve parental rights. Such a court order is not guaranteed, however. Drafting a co-parenting agreement that clearly sets out the obligations, rights, and roles among all three parents can help show a judge why it would be detrimental to the child to not have all three parents legally recognized.
Families with older children can consider pursuing parental rights through a Voluntary Declaration of Parentage, a parentage action, or a confirmatory adoption. A co-parenting agreement can also be helpful here, as well as evidence showing how all three parents are involved in the child’s life, how losing one parent would negatively impact the child’s well being, and how the parents have all worked together to create a stable, loving, and supportive environment for the child.
The importance of proactive planning
The “three-parent law” in California represents a landmark step toward legal recognition of multi-parent families, recognizing the critical need to protect children from the trauma of being separated from a parent.
However, the legal landscape remains complex. While the law allows for more than two legal parents in rare cases, it does not expand the fundamental definition of who qualifies as a parent. And, while the law technically allows for more than two parents, it has yet to be applied to find more than three parents for a child. This leaves non-biological and non-marital co-parents in multi-parent families in a legally vulnerable position.
For families in all stages, taking proactive legal steps is vital. Whether you are in the early stages of planning your family and seeking a court order for the birth certificate, or if you are pursuing third parent rights of older children, consulting with an experienced family law attorney is highly recommended.