Custody and Visitation in Families With Three (or More) Parents

• Author: June Carbone,Naomi Cahn
• Date: 01 July 2018
• Published date: 01 July 2018
• DOI: http://doi.org/10.1111/fcre.12356

CUSTODYAND VISITATION IN FAMILIES WITH THREE (OR MORE)

PARENTS

Naomi Cahn and June Carbone*

New technological and legal developments haveenabled the formation of three-parent families. Now that these families have

arrived, families—and family law—must adapt to allocate responsibilities among the responsible adults.

Key Points for the Family Court Community:

•Identifies states permitting three-parent families

•Demonstrates how family law allocates custody and visitation in these families

•Provides suggestions for reform

Keywords: Custody; FamilyLaw; Parenthood Recognition;and Same-Sex Parents.

I. INTRODUCTION

The legal regulation of parenthood is at a crossroads. The fight for recognition of lesbian, gay,

bisexual, and transgender (LGBT) families has contributed both to the recognition of alternative

families based on function rather than biology or marriage and to the increasing use of assisted

reproductive technologies (ART) to create families of choice. With the U.S. Supreme Court’s

embrace of marriage equality in Obergefell v. Hodges, the ability of a same-sex married couple to

be recognized as parents is at hand; the next step is winning recognition for third-party contributors

to the creation of families of choice. These developments will produce new challenges for the deter-

mination of parenthood. The immediate questions are whether, now that LGBT couples can mar ry,

formal institutions such as marriage and adoption will attain new importance in signaling intent and

whether recognition of the full array of functional parents will require the creation or refinement of

new legal categories.

This article addresses these issues through an examination of a legal development already well

underway: the recognition of three or more legal parents for a child.

1

This article will argue that a

major obstacle to recognition of multiple parents has been the difficulty of administering rights and

responsibilities between more than two adults. This article maintains that the problem is not the rec-

ognition of three parents in principle—that is increasingly being done now. Instead, the difficulty

comes from insistence that all adults receiving the title “parent”have not only equal status with

each other but equal rights to a continuing relationship with a child. Challenging this insistence

does not answer the question of the terms such parental recognition should entail.

This article first addresses the possibility of creating multiparent families, arguing that LGBT

reproduction has combined intent and function in ways that have laid a foundation for the recogni-

tion of alternative families. We then summarize how existing law is moving toward recognition of

three (or more) parents in accordance with these changes and how marriage equality is likely to

increase the pressure to acknowledge a variety of alternative family arrangements, without agree-

ment about what such recognition entails when it comes to raising a child. After that, we discuss

the problems that would arise if the courts were to try to recognize multiple adults as parents and

accord them equal standing in accordance with existing law. Finally, we argue that in those cases in

Correspondence: ncahn@law.gwu.edu; jcarbone@umn.edu

FAMILY COURT REVIEW, Vol. 56 No. 3, July 2018 399–409

© 2018 Association of Family and Conciliation Courts