MORE THOUGHTS ON THE DELAWARE DE FACTO PARENT LAW--A CHILD CAN HAVE THREE PARENTS: Nancy Polikoff

blogs [and answers the question I was wondering about when I read her initial post--Eve]:

I failed to note in my last post an unusual and important aspect of Delaware's new statute creating parentage in a person who qualifies as a "de facto" parent:
This is a statute that explicitly authorizes three parents (or more) for a child.

The statutory interpretation is easy. A "de facto" parent must satisfy the criteria (check my last post for these). The first criterion is "has had the support and consent of the child's parent or parents..." So a child can already have two parents. Both those parents must consent to and foster a parental relationship between the child and another person. That person then satisfies the remaining statutory criteria, and, voila, the child has three legal parents.

The entire subject of more-than-two parents is severely untheorized, and the law in this area is profoundly underdeveloped. When you consider the number of children whose parents divorce and then couple with other partners, there are many, many children with more than two parental figures. The standard course, however, is that for a step-parent to become a legal parent that person must adopt the child and for that to happen the noncustodial parent must consent to termination of his/her parental rights.

There are a handful of court decisions allocating the rights and responsibilities of parentage among more than two parents, including a few states in which trial courts have granted third parent adoption decrees to the partner of the biological mother when the semen donor is also a functional (and legal) parent. But those are the exception.

When I was in Australia earlier this year, I spent some time with a family of four parents...the bio mom, her partner, the semen donor/bio dad, and his partner. The women are the primary parents. The men are secondary parents. The child is seven years old, and the relationships have been stable throughout his life. Australia's parentage reforms of the past year do not allow for even three parents, let alone four. ...

Of course the Delaware statute isn't just for same-sex couples and our families. And since there are way more heterosexual families, I wouldn't be surprised if the first three-legal-parents family in Delaware is a divorced couple and a step-parent -- all by consent. After the stepparent has a bonded parental relationship with the child for a sufficient period of time, and with the agreement of both the child's legal parents, a court should issue a parentage order to the step-parent. It does happen that post-divorce family configurations actually work well enough for such an arrangement to be appropriate --- to be the matching of legal parentage to all the child's emotional parental relationships.

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Labels: beyond marriage, de facto parenting, Delaware, donor conception, Nancy Polikoff

posted by Eve at 1:20 PM VOTE

Del. Legislature Creates De Facto Parenthood: Nancy Polikoff

blogs:

A mere six months ago I chastised the Delaware Supreme Court for denying de facto parent status to a lesbian mom who had not adopted a child although she and the child's adoptive mother had planned for and raised the child together.

Well, the Delaware legislature has stepped up BIG. It passed a statute creating de facto parent status when the de facto parent:
(1) Has had the support and consent of the child's parent or parents who fostered the formation and establishment of a parent-like relationship between the child and the de facto parent;
(2) Has exercised parental responsibility for the child as that term is defined in §
1101 of this title; and
(3) Has acted in a parental role for a length of time sufficient to have established a bonded and dependent relationship with the child that is parental in nature.

("Parental responsibility" is defined as "the care, support and control of the child in a manner that provides for the child's necessary physical needs, including adequate food, clothing and shelter, and that also provides for the mental and emotional health and development of such child.")

When a person meets this criteria, she is a legal parent, on par for all purposes with a woman who gives birth to or adopts a child.

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Labels: de facto parenting, Delaware

posted by Imapp Staff at 1:12 PM VOTE