California courts need to recognize emerging family patterns

Expanding the definition of what it means to be a parent, especially for same-sex couples, the New York State Court of Appeals ruled last week that a caretaker who is not related to, or the adoptive guardian of, a child can still be permitted to ask for custody and visitation rights.

Susan L. Sommer, the plaintiff's lawyer and the national director of constitutional litigation at Lambda Legal, called the decision a "landmark in New York," and said it brought the state "into line with the mainstream in the United States in recognizing that children frequently have a second parent not related to them by blood, adoption or marriage," the New York Times reported.

Hearing that New York is catching up with the mainstream when it comes to new and emerging parentage legislation, one might assume that states such as California have it all figured out. But California has a long way to go before it can truthfully claim it completely understands and has solved the multitude of challenging issues.

It is long overdue that the court recognize that emerging family patterns include complex blended families in various forms. These include multi-generational blended families with one spouse significantly older than the other; complex step-parent families involving children of both the first marriage and of the remarried couple; emergent recycled parent-grandparent pattern where the grandparents are the provider and nurturer to their children as well as parent to their grandchildren upon the death of the children; as well as families where the children are born as a result of assisted reproduction technologies and may have multiple sets of parents. It is abundantly clear that the families are undergoing a social transformation from a relatively rigid system to a more flexible and more individualistic family patterns in search of the best interest of the children to include a traditional nuclear family and a more complex three and more parent family.

Award of custody to a non-parent has to be weighed against a long established rule that parents have a constitutional right, guaranteed by the 14th Amendment, to direct the education and upbringing of their children.

For the children who are lucky enough to have three parents, all three adults could decide to share legal parenting rights and responsibilities. This additional love allows for more emotional and financial support. It also means that all three adults involved in raising the child have legal protection for their parent-child bond. It is the public policy of the state of California to protect parent-child relationships whether there are two or three people who function as the child's parents.

Thankfully, the California Legislature recognized that most children have two parents, but in rare cases, children have more than two people who are that child's parent in every way. It further gave serious consideration to the fact that separating a child from a parent has a devastating psychological and emotional impact on the child, and acknowledged that the family courts must have the power to protect children from this harm. California's "three-parent bill," codified into a statute to become effective on Jan. 1, 2014, in 2013, eliminated prior law expressed in In re M.C., 195 Cal.App.4th 197 (2011), that prohibited recognizing a possibility of more than two people as the child's parents.

The three-parent bill also coined a new term: "Natural Parent," defined as a "non-adoptive parent," whether biologically related to the child or not. It also provides for a finding of a "parent and child relationship" as the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations, inclusive of the mother and child relationship and the father and child relationship. And, equally important, it does not preclude the finding that a child may have more than two parents.

California still lags behind in issues addressing the financial responsibility for the child in a three-parent situation, i.e. child support. Similarly to the two-parent situation, the issue of child support does not exist in an intact family. Once, however, the intact family is no more, financial obligations become a subject of great controversy. In California, the amount of child support is a mandatory number (with some exceptions), determined by the infamous DissoMaster, a computer software sui generis to California.

With respect to the three-parent scenario, the bill's only guidance is that "The statewide uniform guideline, as required by federal regulations, shall apply in any case in which a child has more than two parents. The court shall apply the guideline by dividing child support obligations among the parents based on income and amount of time spent with the child by each parent."

The practical issue is that, while the three-parent bill was codified into the law approximately three years ago, the child support calculations have not caught up. To this day, family law practitioners and the bench officers don't have the much-needed tools to properly calculate child support allocating the mandatory payment amounts between the three parents. When I asked for guidance, one judge said he calculates support based on what passes his "smell test"; another said she just approximates.

California can do better.