Can Heather Have 2 Mommies and 2 Daddies?

California bill creates new rules for legal parents allowing more than 2

Sen. Mark Leno
Sen. Mark Leno (photo: Courtesy of Mark Leno)

SACRAMENTO — Legislation that would allow more that two “parents” per child has passed the California state Senate and gone on to the state Assembly.

S.B. 1476 “brings California into the 21st century by recognizing that there are more than ‘Ozzie and Harriet’ families,” said state Sen. Mark Leno, D-San Francisco, who proposed the legislation.

The bill, which the Senate passed by a 24-13 vote, would amend California’s family code so a judge could allow a child to have more than two parents where “the best interests of the child” require it. The new rules would cover a situation, for example, in which a man begins dating a woman while she’s pregnant and then they marry. Three people could now claim to be the child’s “parent”: the mother, the ex-boyfriend (the biological father) and the new husband.

As another example, a lesbian couple could ask a male friend to help them conceive, then decide all three will raise the child.

“One of the most common situations is when a child has two legal parents — a mother and the mother’s husband — and also a biological father who’s in the picture,” said Shannon Minter, legal director for the National Center for Lesbian Rights. “We want courts to be able to protect both of those [paternal] relationships.”

Leno, who is up for reelection this year, defends the bill on the grounds that it will lower taxpayer expenses “because all parents will be obligated to provide support,” and having more than two parents may “keep a child out of foster care by giving the court more options for placement.” On his website, Leno states that he is “the first openly gay man elected to the California Senate” and that he authored California’s first same-sex “marriage” bills. 

The bill is now in committee and expected to come to a vote soon, perhaps on Aug. 6.

Carol Hogan, communications director for the California Catholic Conference, said there’s little doubt in this heavily liberal-Democrat state that the bill will pass and be signed into law.

But family-law scholars warn that, if passed, the new rules will lead to burdensome consequences for courts and children.


‘A Hornets Nest of Litigation’

Now that our society has accepted so many alternate “family forms” and has embraced in vitro fertilization and other reproductive technologies, “it makes sense in a perverse kind of way for legislatures and the courts to say, ‘We’ve got to create all these new rules,’” said William Duncan, director of the Washington-based Marriage Law Foundation.

Even so, Duncan observed, “The problems [with this legislation] are legion. Since the dawn of time, it’s been understood that you’ve got a mom and a dad — there’s one each per child. Our laws, including our marriage laws, are all built around that understanding.”

Charles Reid, a family-law scholar at the University of St. Thomas in Minnesota, said the new rule will lead “to all sorts of confusion” and “a hornet’s nest of litigation.”

“It sounds horrible to me, a nightmare,” said Katherine Spaht, a family-law professor at Louisiana State University. “When you’ve got four or five people who could potentially be recognized as parents, it creates a host of problems for the child.”

If the group breaks up, for example, four or five people — or “parents” — could sue for custody. A 3-year-old child could be “dragged all over the place, having visitation rights with everybody under the sun,” Spaht said.

Or, to consider another scenario, what if a 2-year-old should happen to inherit a million-dollar estate from a grandparent? Suddenly, everyone is going to want to be that child’s “parent,” Spaht said.

“When parenting in the law is reduced to simply the combination of unrelated people who can provide the best outcome for children, then there will no longer be any need for marriage, the only institution that unites kids with their moms and dads,” said Bill May of Catholics for the Common Good. “It used to be that courts protected children. With laws permitting the assignment of combinations of adoptive and natural parents based on some subjective 'best interest,' you can be almost certain the interest served will be that of the adults or the state rather than the fundamental rights of the children to know, be loved and be cared for by their own flesh and blood.”

“One way divorce is hard on children is that they have to navigate between two different worlds: dad and his situation and mom and what she’s going through,” Duncan said. “Adding another person to that mix seems almost unreal to me.”

For example, in a relationship triangle of birth mother and two fathers (current husband and ex-boyfriend who had lived with the mother and child) what if the ex-boyfriend, who is not the biological father, is abusive or goes after the child out of spite? “Social science research shows the ex-boyfriend demographic is especially risky for children,” Duncan said.

The bill specifically states the new rule would require a court to decide what is best for the child.

But with parental duties divided among three or more people, “the difficulty is that no one will have enough of the parenting responsibility to allow the child to flourish,” observed Margaret Brinig, a law professor at the University of Notre Dame.


Not the First — Nor the Last?

Though unique in some ways, S.B. 1476 is not the first state legislation that attempts to reconfigure the legal definition of “parenthood.”

In July 2009, Delaware passed a statute giving courts the power to designate an unrelated adult as a child’s “parent” if the biological parent agrees and the person has exercised “parental responsibility” long enough for the child to have bonded with him or her.

A District of Columbia statute, passed in 2007, would allow for at least three “parents” per child.

Peter Sprigg, a senior fellow for policy studies at the Family Research Council in Washington, sees the California bill as “a Trojan horse for the same-sex ‘marriage’ movement.”

The multiple-parent movement is “clearly the next step in deconstructing the family” and “an outgrowth of the same-sex ‘marriage’ idea,” Duncan agreed. “If marriage is just ‘any two people,’ there cannot be anything unique about having a mother and a father. And if mothers and fathers are interchangeable, why not have more of each kind?”

Supporters of the measure say it came about as the result of a 2011 appellate court decision involving a lesbian couple who were raising a young girl. When one woman was hospitalized and the other sent to prison, the girl’s biological father was unable to act as her legal guardian under current California law, which recognizes only two legal parents per child.

“This bill has nothing to do with the broader culture war,” said Ed Howard at the University of San Diego’s Children’s Advocacy Institute. “The idea we’re trying to advance any agenda other than what’s in the best interest of a particular kid in a particular courtroom is just balderdash.”

But Duncan said whatever the intentions are of the drafters of the bill, it’s the damaging effects on children that matters. “We wouldn’t have this kind of strange situation where a father is shut out of a child’s life if California hadn’t first decided to redefine what a parent means,” Duncan said. “So California creates a mess, and, then, in trying to fix the mess, they make the situation even worse.”

Register correspondent Sue Ellen Browder writes from Ukiah, California.