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How to Have Two Dads, Two Moms, and Be Legal Too

I like to watch Modern Family. Sure, it has your traditional mom-dad-and-the-kids family. But it also has a family with two gay men and their adopted asian girl as well as one with an old man and his (much) younger Colombian wife with her son from a previous marriage.

Those are modern families. But could the show already be out of date?

The Modern, Modern Family

For the new modern family, the defining question of parents is not who, but how many. With more LGBT familes, courts are coming to terms with the notion that a child could have multiple legal parents, and in some cases multiple biological ones.

Michelle O’Neil, a Dallas divorce lawyer, explained her thoughts yesterday:

Increasingly, the spotlight is shining on same-sex parenting units as a family. . . In California, a three-party adoption has been recognized. When asked why that was important, the parents replied that there is a perceived difference between being a “parent” under the law versus a friend or “uncle”. Third-parent adoptions remain extremely rare, and only a handful have been done, mostly in Massachusetts and California. But some legal scholars see in them the seeds of a larger shift in how the law defines parenthood. These advocates point to a few recent court decisions that suggest a willingness to recognize more than two parents.

Why is it changing?

The cause of this larger shift is due to courts basing parental status more on relationship than biology. Legal parental status, courts are starting to reason, should be based more on who cares for a child (relationship) than on who’s genetics they have (biology).

It is LGBT couples specifically that are causing the choice between relationship and biology to have different results. Before, most children were raised by their biological parents or parent. But same sex couples can never be both biologically related to their child, and usually neither of them are. As a result, they often form “blended families” with the biological parents of their adopted children.

So what’s a multiple-parent family actually look like?

Let’s take a look at the California three-parent family that Michelle mentioned. Drake Bennett, a writer from the Boston Globe, interviewed the family about their story:

When Sharon Tanenbaum and Matty Person, a married lesbian couple in San Francisco, decided to have a child together, it wasn’t hard to figure out who they wanted the sperm donor to be. Bill Hirsh was one of Sharon’s oldest friends, they had known each other, Sharon says, “since we were born, more or less.” Their fathers had been best friends in college, and Sharon and Bill had grown up spending summers together and calling each other’s parents aunts and uncles.

Sharon, Matty, and Bill agreed that Bill would be more than just a source of genetic material — they wanted him to be a father. When Sharon had a son, Jesse, in 1994, the boy lived with Sharon and Matty, but growing up he spent one day a week with Bill and Bill’s same-sex partner, Thompson. In addition, the whole family would gather once a week for dinner.

But because Bill and Sharon were Jesse’s biological parents, Matty (Sharon’s partner) had no legal rights:

“Let’s say I died in some terrible car crash or whatever and Matty had no legal rights, and let’s say she and Billy had a falling out or one of my parents or brother wanted to take care of Jesse,” Sharon says. In that case, Matty could have had Jesse taken away from her altogether.

At the same time, no one in the family wanted to force Bill to give up his parental status. So, when Jesse was 4, their lawyer persuaded the San Francisco Superior Court to allow Matty to do a third-parent adoption. The move, which had little precedent, gave Jesse three parents, three people who, in the event of a split, could demand custody or visitation rights and would be responsible for paying child support.

Still, I don’t think you’ll see a widespread judicial shift towards recognizing multiple-parent families anytime soon. That won’t happen until gay marriage becomes legal, and more importantly, common.

[Cross-posted at the Gay Law Report, where I discuss LGBT laws and related news.]

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Gideon Alper

Gideon Alper