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The More The Merrier Revisited: Tri-Custody in New York

March 31, 2017/in Family Law /by Michael Lonich

As we have discussed on this blog before, California allows a child to have more than two legal parents.  With the rise of assisted reproduction and wider recognition of non-traditional family units, it is growing apparent that children may receive substantial physical and emotional care from more than two people.

In California, the Martinez v. Vaziri case concluded that a child’s biological mother, biological father, and third person—the man who cared for the child and was the child’s only father figure—could all claim legal parentage.  The case’s holding was grounded in a California statute (Family Code Section 7611) that allows children to have more than two legal parents if recognizing only two parents would be detrimental to the child.

Now, New York has stepped up to the plate in a case involving a polyamorous family.  After a lengthy custody battle, a judge awarded custody of a child to three different people.  When the child was born, the three people had been involved in a longstanding intimate relationship.  Two of the people were married, and the remaining person lived next door.  The married woman (Wife) could not conceive, so the family decided that the married man (Husband/Father) would impregnate the third woman (Mother), and the family would raise the child together.  Ultimately, Mother gave birth to a boy, but then, Wife and Husband/Father got divorced while Wife and Mother continued their relationship.  Even though Wife continued to see her son during his custodial time with his biological mother, Wife wished to formalize her own legal link to the boy.

Concluding that the child viewed both women as his mothers and would be devastated if any of his three parents were removed from his life, a New York judge granted parental rights to Wife, Husband/Father, and Mother.  Unlike in California, this decision is not grounded in a statutory right to have more than two parents, but the case evidences an emergent shift in the judiciary’s interpretation of what constitutes a family unit.

If you have any questions about establishing your child’s legal parentage, please contact the experienced family law attorneys at Lonich Patton Ehrlich Policastri—we can help you understand and secure your and your child’s legal rights.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

SOURCE:

http://www.cnn.com/2017/03/14/health/three-parent-custody-agreement-trnd/

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Michael Lonich https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Michael Lonich2017-03-31 10:34:202021-12-22 20:10:37The More The Merrier Revisited: Tri-Custody in New York

The More the Merrier?: When a Child Can Have More than Two Legal Parents

August 5, 2016/in Family Law /by Riley Pennington

Traditionally, when multiple parties would claim to be a child’s parent, a court could only recognize two of those claims.  However, family matters are rarely so simple, and a recent California case has reaffirmed what subsection (c) of Family Code Section 7611 provides: “[i]n an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child.”  “Detrimental to the child” is determined by (but not limited to) the “harm of removing child from stable placement with a parent who fulfills that child’s physical and emotional needs and has done so for a substantial period of time.”  Importantly, a finding of detriment does not require that a court find any other parentage claimant to be unfit.

In April 2016, the California Court of Appeal for the Sixth District elaborated on Section 7611.  In Martinez v. Vaziri, the petitioner was the child’s biological uncle, the respondent was the child’s mother, and the child’s father was the petitioner’s half-brother.  Petitioner and Mother had been in a long-term relationship when Mother conceived a child.  However, DNA testing revealed that the child was fathered by Petitioner’s half-brother.  Father abandoned Mother during her pregnancy, and since the child’s birth, he has been in-and-out of jail.

Aware that he was not the father, Petitioner raised the child as his own—he accompanied Mother to her doctor’s appointments, was present at the child’s birth, and lived with and cared for the child during her first six months of life.  Even after he moved out of Mother and Child’s home, Petitioner continued to see Child three days and two to three nights a week.  Eventually, Petitioner initiated proceedings to establish legal parentage.

Although the trial court denied Petitioner’s parentage claim, the Court of Appeal remanded the case for reconsideration of detriment to the child in light of its interpretation of “stable placement.”  The trial court had concluded that even though Petitioner established himself as the presumed parent of Child, there was no threat of Child’s “stable placement” being upended because Petitioner had already spent substantial time apart from Child while he attended a drug rehabilitation program.

The Court of Appeal found the trial court’s interpretation of “stable placement” to be lacking and remarked that the phrase is in reference to a parent’s physical and emotional attention to a child’s need.  Therefore, the critical distinction is not the living situation, but rather, whether a parent-child relationship has been established, and whether the claimant has demonstrated a commitment to the child.

Thus, as Martinez v. Vaziri demonstrates, a child is not limited to two parents.  If a third claimant can prove a sincere and stable commitment to a child (a still demanding standard), a court has the ability to protect the alternative parent-child relationship—without penalizing the child’s other biological or presumed parents.

Establishing parentage is important for both parents and children; however, multiple parentage claimants can complicate the process.  If you have questions about the parentage of your child or are interested in establishing legal parentage, please contact the experienced family law attorneys at Lonich Patton Ehrlich Policastri to help you sort through your and your child’s rights.

Lastly, please remember that each individual situation is unique, and results discussed in this post are not a guarantee of future results.  While this post may detail general legal issues, it is not legal advice.  Use of this site does not create an attorney-client relationship.

Sources:

1)  Cal. Fam. Code § 7612(d)

2)  Martinez v. Vaziri (2016) 246 Cal.App.4th

https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png 0 0 Riley Pennington https://www.lpeplaw.com/wp-content/uploads/2021/05/LPEP_PC.png Riley Pennington2016-08-05 11:50:262021-12-22 20:13:35The More the Merrier?: When a Child Can Have More than Two Legal Parents
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