By Sherri Donovan
Reprinted with author’s permission
The traditional key terms regarding the care of children in family law — “custody” and “visitation” — seem increasingly outdated and in fact detrimental to positive outcomes.
These terms imply competition, winning and losing, ownership and possession, and a diminished, stigmatized parental status, tending to exacerbate the threats to fragile egos and psyches during a period of divorce or separation.
The child’s needs should be the beginning and end point in any dispute between co-parents. Defining terms that imply collaboration may help keep the focus on the issues rather than inspiring parents to fight and enter into unnecessarily bitter and damaging custody battles so as not to feel like he or she is losing “custody” of the child. Use of a parenting plan that sets out a schedule without use of the term “visitation” normalizes the concept of a child sharing time with each parent, living and spending time with each parent at certain times. This is as opposed to one parent being deemed the “custodial parent” with the other being permitted “visitation” of the child, which gives rise to a painful feeling that one parent’s status has been devalued.
Use of a wheel or spheres may also be helpful, setting out categories or types of decisions that parents will need to make as joint caretakers. Focus again stays with the issues, tasks and roles involved with the care of the child, rather than on which parent wins the title of legal custodian. If parents are unable to engage in true joint and collaborative decision-making, one option is to grant each parent certain spheres for which he or she is primarily responsible. One parent may be granted primary decision-making over issues relating to extra-curricular activities and education, while the other is in charge of health care decisions and religion.
In each case, the child’s particular needs remain paramount and the terminology utilized reinforces the concept that each parent remains responsible for the child even though the child is now dividing his time between households.
The child’s particular needs and situation should be taken into account when creating a tailored parenting plan. The parenting schedule and assigned roles and tasks can be revisited on an annual basis, with the aid of a parenting coordinator or other neutral professional if need be.
Another increasingly outdated concept is that a child cannot have more than two parents.
Traditional state law recognizes individuals as parents based on biology, marriage or adoption—bright line rules intended to promote stability. As a result of complicated and often unfortunate real life situations, but also advances in assisted reproduction technology, many states are faced with situations where the bright line rules that may not serve the child’s actual needs.
Many people are arranging to have children with a third party via assisted reproduction technology. The parties may or may not be married, there may be a surrogate or donors, and donors may or may not be known. While some couples seek a traditional “nuclear family” model of two parents, with the egg or sperm donor having no parental rights, some couples may intentionally seek out a known donor who will play a regular role in the child’s life. The donor may also have a partner who is involved with the child.
How does a court decide if it should recognize a social parent (e.g., a lesbian mother’s partner) or a biological parent (e.g., a sperm donor)?
A 2011 California case (In re M.C., 195 Cal. App. 4th 197 ) involving a biological mother, her same-sex partner and a known biological father who had an affair with the biological mother led to an appeals court ruling that a child could not have three parents — even though both the biological mother and her same-sex partner were not immediately capable of caring for the child and she was placed in foster care. The ruling was followed by legislation, signed by California governor Jerry Brown in early October 2013, which allows children to have more than two parents.
California Senate Bill 274 authorizes a court to recognize more than two parents if not doing so would be “detrimental” to the child. The measure applies to families with more than two people who fulfill California’s definition of “parent”, not to other caretakers or relatives. Some have expressed concern that the bill would make it possible for children to have too many parents—four, six, even eight—potentially creating impossibly complicated legal and emotional ramifications. However Sen. Mark Leno and other supporters of the bill stressed that that the law was to be used only when a child could be at risk of having too few parents and thus unnecessarily entering the foster care system.
For many years, Louisiana has provided by statute and case law that a child may have two fathers and a mother where the mother’s husband is not the biological father. (La. Civ. Code, Art. 134; Smith v. Cole, 553 So. 2d 847 [La. 1989]).
Courts in Pennsylvania and Maine have also recognized that a child can have more than two people with all the rights and responsibilities of parentage. In Pennsylvania, a court upheld an award of primary custody to a biological mother’s same-sex partner, with partial custody to the biological mother and sperm donor, who had been involved as a parent since infancy. The court also found that all three parents had an obligation to support the child (Jacob v. Shultz-Jacob, 2007 PA Super 118, 923 A2d 473 ). In Maine, a court found that a non-biological parent could have all the rights and responsibilities of parentage in addition to two legally-recognized biological parents (C.E.W. v. D.E.W., 2004 ME 43, 845 A2d 1146, 1149-51 [Me. 2004]).
As in California, Delaware and the District of Columbia allow a child to have more than two people with all the rights and responsibilities of parentage by statute. (Del. Code Ann. Tit. 13, Secs. 8-201; D.C. Code Sec. 16-831.01, et seq.) In D.C., people are allowed to sue for child custody if they can show they had acted as “de facto parents”. In Delaware, state courts have the ability to designate a non-parent as a “de facto” parent if the biological parent of the child fosters a “parent-like” relationship between the non-parent and the child and the de facto parent acted like a parent and bonded with the child in a way that is “parental in nature.”
Again, in navigating this increasingly complicated terrain, it is important that the child’s needs remain the beginning and end point in any disputes. While it is already challenging for courts to help two parents agree how to raise their child following a divorce, the law must also recognize a court’s need to recognize the real bonds and roles that have developed in a child’s life, even when non-traditional, especially when the child’s wellbeing is at risk.
Sherri Donovan ESQ