Decisions in divorce and family law previously reflected the fact that a child could only have two legal parents. This January, a new law will change the traditional perception of “family” for the California court system.  

By Plinio Garcia, Parenting Consultant

Until recently, all children in California (like in most other states) were presumed to have either one or two parents. “Three parents” was not an option. That changed on October 4, 2013, when SB 274 was signed into law by Governor Jerry Brown. The new law and the changes it makes to the Family Code will go into effect January 1, 2014. In this article, I present the law and discuss what a child having more than two legal parents means for the courts, couples, family members, and children.

SB 274 was introduced by California senator Mark Leno of San Francisco. Officially, it is called “SB 274, Family law: parentage: child custody and support.” SB 274 amends Sections 3040, 4057, 7601, 7612, and 8617 of the Family Code.

Family Law: Parentage

Section 1 defines the law by saying, “The Legislature finds and declares all of the following:

(a) Most children have two parents, but in rare cases, children have more than two people who are that child’s parent in every way. Separating a child from a parent has a devastating psychological and emotional impact on the child, and courts must have the power to protect children from this harm.

(b) The purpose of this bill is to abrogate In re M.C. (2011) 195 Cal.App.4th 197 insofar as it held that where there are more than two people who have a claim to parentage under the Uniform Parentage Act, courts are prohibited from recognizing more than two of these people as the parents of a child, regardless of the circumstances.

(c) This bill does not change any of the requirements for establishing a claim to parentage under the Uniform Parentage Act. It only clarifies that where more than two people have claims to parentage, the court may, if it would otherwise be detrimental to the child, recognize that the child has more than two parents.

(d) It is the intent of the Legislature that this bill will only apply in the rare case where a child truly has more than two parents, and a finding that a child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents.”[1]

Diverse Family Realities

We all know that in the United States, and especially in California, the law trails reality. Today’s family units take a variety of forms: blended families, extended families, straight couples who adopt, single parents who adopt, gay individuals who adopt, gay couples who adopt, gay couples who have children through surrogacy, straight parents who have children through surrogacy, and more often, grandparents who help raise their children’s children. This law truly looks at all individuals concerned, to assure that what is in the best interest of the child can be legally carried out.

Therefore, instead of viewing this law as an abomination that creates more work for everyone, we should see that it puts into writing the familial realities that already exist, and helps us sort out who should be responsible for raising children in an ever more complex society.

Child Rearing and Custody

More importantly, according the law’s author, “SB 274 will not only allow rightful parents to assert their custody/visitation rights…but also prevent those altogether undesirable scenarios in which judges are obligated to place children in foster care despite the presence of someone who has played a vital parental role up to that point in time.” [2]

Although most foster parents are caring individuals with amazing training and huge hearts, the majority of therapists would agree that it is preferable for a child to live with a caring, loving, and familiar caretaker or “parent” than to be placed in foster care. Too frequently, children are taken from their “parents” or caretakers and put in strange foster-care environments that have negative emotional and psychological effects on them.

Sections 2 through 7 of the law tell the courts how and when the law should be applied, and Section 8 explains when the law will take effect. Let’s take a closer look.

Section 2 instructs the courts to award custody to both parents jointly or to either parent, based on who has the child’s best interest at heart. In awarding custody, the law considers which parent is more willing to allow the child to see the noncustodial parent. In other words, the parent who is more likely to not alienate the child from the love of the other parent should be the one granted custody.[3]

Therefore, it is my opinion that in applying this law and looking at the best interest of a child, a parent who is practicing alienating behavior (“parental alienation”) should receive less or no time with the child.  The “giving” parent, or the one who understands the importance that having more caretakers is best, deserves to have more of the custodial time. This section follows the tradition of most California family courts in that it looks at a two-parent relationship as being in the best interest of the child. Now it becomes more of a policy that considers more loving caretakers as what’s best for the child.

Child Support

Section 3 adds Section 4052.5 to the Family Code. It assigns the receiving of child support to the parent who spends the most time with the child. However, pursuant to Section 4057 of the Family Code, the court may appropriate support among all the parents if it finds injustice in allocating it to the parent who spends the most time with the child.[4]

This section seeks a way to assign financial responsibility in a fair manner that allows for the child’s care. Section 3 changes the way child custody and support are viewed financially because it considers more people as legal parents who can help care for the child—thereby potentially avoiding the need to turn to foster care and government agencies.

Section 4 amends Section 4057 of the Family Code in several ways. It supports the formula provided in Section 4055(a) to determine child support, except if evidence shows that at least one of the following factors is applicable: (1) the parties have stipulated differently; (2) sale of the family residence is deferred pursuant to Chapter 8, Section 3800; (3) the parent providing child support has an extraordinarily high income, which exceeds the child’s needs; (4) one parent is not contributing according to his or her custodial time; or (5) there are other special circumstances, such as the child has special needs or has more than two parents.[5]

Section 5 amends Section 7601 of the Family Code to read as follows:

“(a) ‘Parent and child relationship’…means the legal relationship existing between a child and the child’s natural or adoptive parents…

(b) This part does not preclude a finding that a child has a parent and child relationship with more than two parents…

(c) Any reference to two parents shall be interpreted to apply to every parent of a child where that child has been found to have more than two parents…”[6]

Section 5.5 amends Section 7601 to say that a “natural parent” may be a “non adoptive parent,” whether biologically related to the child or not. It assigns rights, protections, benefits, responsibilities, obligations, and duties to every parent a child has.[7]

Section 6 amends Section 7612 of the Family Code to allow a court to find that more than two persons with a claim to parentage are parents, if recognizing only two parents “would be detrimental to the child.” This section also allows courts to set aside a voluntary declaration of paternity as invalid if (1) the child already had a presumed parent under Section 7540, (2) the child already had a presumed parent under Section 7611, or (3) the man signing the declaration is a sperm donor.”[8]

Section 7 relieves parents of parental duties and obligations for their children who are adopted by others.[9] Section 7 clarifies that parents who give up children for adoption are no longer responsible for those children.

Section 8 explains when and how this legislation becomes effective. The effective date is January 1, 2014.[10]

These changes in family law really should be viewed as positive in terms of the care of the child. We all know that the more loving and caring individuals there are in a child’s life, the more self-esteem the child will have and the better he or she will adapt to society. Therefore, the child will be less of a burden on society.

Financial and Caretaker Benefits

In addition to the psychological benefits of the new law, there are financial benefits. This law begins to look at all the individuals helping to care for a child, rather than adhering to the tradition that the father should have financial responsibility for the child. In our ever-evolving society, in which women are commanding better wages, it is unfair to assign financial responsibility to a male parent simply because that is what used to happen. Today there are many stay-at-home dads who are excellent caretakers; in a custody-and-support situation, they should be the ones to take care of the child, especially when their former female partner enjoys her career and commands enough income to provide for the child.

Courts can now openly and honestly consider same-sex couples and determine who should be the financial provider and who should be the caretaker whenever there is a difference between the two roles or whenever same-sex couples decide there should be a difference.

With this law, the courts can make fair and honest decisions that address custody and support issues related to same-sex couples, surrogacy, blended families, and questionable paternity situations in which the biological parent does not want to or shouldn’t take care of the child.

Despite the positive outlook for this law, it could still give rise to complexities. For example, I have a client right now who has been the legal custodian and parent of his daughter since birth. As far as he knew, he was her biological father, because he was married to her mother. However, after his wife asked for a divorce and lost custody to him, she informed the court that he was not the girl’s biological father. Now my client is being challenged by both biological parents. This law could be used as a defense against that challenge.

This law also opens the door for grandparents to seek visitation and limited custody of their grandchildren, and it gives the courts the flexibility to award certain rights and privileges to these caring individuals when it is in the child’s best interest.

Finally, Elizabeth Marquardt and John Culhane pointed out in a blog of the Huffington Post that when “there [is] a custody battle, the child might end up being shuttled between all” of the parents.[11]

We truly hope that everyone sees this new law as a win-win for the child and parents. Provided that the courts do not use the law’s provisions to place the child with an alienating parent, this law will continue a tradition of looking at the child’s best interest first.

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Plinio J Garcia is the CEO of Major Family Services. Major Family Services offers classes, consulting, books and educational materials that address  a broad range of unique parental training situations that can benefit all types of parents. www.majorfamilyservices.com

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Endnotes

1. Senate Bill No. 274, Chapter 564, Legislative Counsel’s Digest, October 4, 2013, Section 1.

2. “Under New Law, Children in CA Can Now Have Three Legal Parents,” Law Offices of Rosen & Rosen, LLP (blog), November 1, 2013, http://www.rosenandrosenllp.com/blog/2013/11/under-new-law-children-in-ca-can-now-have-three-legal-parents.shtml.

3. Senate Bill No. 274, Chapter 564, Legislative Counsel’s Digest, October 4, 2013, Section 2.

4. Senate Bill No. 274, Chapter 564, Legislative Counsel’s Digest, October 4, 2013, Section 3.

5. Senate Bill No. 274, Chapter 564, Legislative Counsel’s Digest, October 4, 2013, Section 4.

6. Senate Bill No. 274, Chapter 564, Legislative Counsel’s Digest, October 4, 2013, Section 5.

7. Senate Bill No. 274, Chapter 564, Legislative Counsel’s Digest, October 4, 2013. Section 5.5.

8. Senate Bill No. 274, Chapter 564, Legislative Counsel’s Digest, October 4, 2013, Section 6.

9. Senate Bill No. 274, Chapter 564, Legislative Counsel’s Digest, October 4, 2013, Section 7.

10. Senate Bill No. 274, Chapter 564, Legislative Counsel’s Digest, October 4, 2013, Section 8.

11. Elizabeth Marquardt and John Culhane, “California Should Not Pass ‘Multiple Parents’ Bill,” The Huffington Post (blog), August 17, 2012, http://www.huffingtonpost.com/elizabeth-marquardt/multiple-parents-bill_b_1791709.html.