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How a Child Can Have More Than Two Legal Parents

Posted on in Child Custody and Visitation

Los Gatos child custody lawyer same sex parents surrogate motherAs family structures have become more diverse in recent decades, child custody issues have become more complicated. Traditionally, the world has followed the “rule of two” and allowed a child to have just two legal parents at birth: the woman who gave birth to the child and her husband (or, if the woman was unmarried at the time of the birth, the child’s biological father could claim paternity). One parent would have to die or legally terminate their parental rights in order for an adoptive parent to take their place.

However, divorce, same-sex marriage, informal parentage, adoption, surrogate pregnancies, and assisted reproduction have all contributed to an increase in family structures involving more than two parents, and American courts are starting to adapt to the idea of tri-parenting.

In 2013, California became the first state to pass a law allowing for a child to have more than two legal, living parents, and a similar law was recently passed in Maine. Courts in at least 10 other states have approved specific cases of third-parent adoptions, dual paternity, “psychological” (non-biological) parents, or “tri-custody.”

Understanding California Law SB-274

California statute SB-274 took effect on January 1, 2014. The key provisions of this law are as follows:

  • Courts are authorized to name more than two people as parents of a child when the court finds this is necessary to protect the child from the detriment of being separated from someone that the child views as a parent. In making this determination, the court should consider the harm of removing the child from a stable home with a person who has been caring for the child for a substantial period of time.
  • In the case of a child with more than two parents:
    • Courts are to allocate custody and visitation among the parents based on the best interests of the child, “including but not limited to the child’s need for continuity and stability by preserving established patterns of care and emotional bonds.”
    • The court may order that not all parents share legal or physical custody of the child if that would not be in the best interests of the child.
    • Child support should be based on the income of each parent and the allocation of parenting time to each parent.

Examples of Tri-Parenting Families

You might wonder what circumstances could lead to a tri-parenting situation. In one case, two women in a same-sex marriage in California approached a male friend to donate sperm so that one of the women could bear a child. Initially, the law only recognized the biological mother and biological father as parents, until the passage of the 2013 law, after which a court allowed the mother’s female spouse to also legally adopt the child.  

In a New Jersey case, two men in a same-sex marriage agreed to have a baby together with a female friend. The woman maintained primary custody of the child, which carried only one of the men's genes, while the men visited together on a regular basis. Several years later, the woman wanted to move to California with the child, and the two men sued for custody. The court recognized the non-biological male as a “psychological” parent of the child and awarded custody to all three adults, preventing the woman’s move.

Consult a Santa Clara County, CA Family Law Attorney

If you have a complicated child custody issue, an experienced Los Gatos child custody lawyer can help. At the Law Offices of Benita Ventresca, we have been advising clients on diverse and complex family law issues for 40 years. Contact us at 408-395-8822 for a free initial consultation.


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