Academic journal article The American University Journal of Gender, Social Policy & the Law

A Family Is What You Make It? Legal Recognition and Regulation of Multiple Parents

Academic journal article The American University Journal of Gender, Social Policy & the Law

A Family Is What You Make It? Legal Recognition and Regulation of Multiple Parents

Article excerpt

I. INTRODUCTION

For many years, the "traditional" family structure, namely a heterosexual, monogamous couple and their biological children, has not been the only family structure in Western societies. Rising divorce rates,1 stepfamilies, cohabitation, co-parenting, assisted reproductive technologies, LGBT families, and open adoptions have all contributed to this development. Due to this departure from a single model of family structure, it is not surprising that the definition of the nuclear family has been a subject of debate in recent years.2

Changes to what society perceives as a family have impacted how "parent" is defined. New lifestyles and social practices have not only led to the establishment of various family structures but also prompted multiple adults to simultaneously seek the much-coveted label of "parents." Although legislatures and courts have been open to different approaches to the definition of parenthood, so far they have been somewhat reluctant to forego the notion that a child can have two legal parents at most at any given time. As will be established below, this lack of recognition leaves the multiparental families in a socially and legally vulnerable position.3 Its members do not enjoy the same certainty about their rights and obligations "traditional" families do. Consequently, the child's best interests are endangered.

However, this "rule of two"4 has been challenged recently to various degrees in courts and amongst legislatures. Similarly, several legal scholars have advocated for the recognition of multiparental families. They addressed the questions of whether multiparents should be awarded legal status, and the form in which these family structures should be recognized.5 Nonetheless, they have not taken into account the various types of multiparental families. In some instances, the structure chosen by the multiparents is egalitarian, meaning that they all perceive themselves as having the same status, rights, and obligations. In other cases, the model is hierarchal, with some individuals holding full parental status, rights, and obligations, while others have a more limited standing. By omitting from their consideration both egalitarian and hierarchal structures, even those who advocated for recognition of multiparents did not offer a solution that captures this socio-legal phenomenon in its entirety.

This paper provides a novel comprehensive categorization of the various multiparental family structures, and examines how legislatures and courts in California, British Columbia, and England recognize and regulate multiparental families.6 The analysis section shows that the states' treatment varies from non-recognition of any status, through regulation of the multiparental family (i.e. determining who is a parent, what constitutes parenthood, and what is the scope of each parent's rights and responsibilities), to their recognition by giving legal force to parental agreements. Moreover, the paper indicates that even in those jurisdictions that do allocate parental status to multiparents, not all multiparental structures are recognized. Each jurisdiction awards status on either an egalitarian or hierarchal model, but does not cater for both.

Drawing on these findings, the paper suggests that the method of allocation of parental status should be flexible enough to cater for all five multiparental structures. Therefore, the traditional doctrines of allocation of parental status should be abandoned. Instead, the focus should be on the intentions of the parties to a parental agreement, as well as the child's best interests. Parental agreements of multiparental families should be recognized by the state as long as the family members are in agreement as to each-other's parental status, leaving the power to form a family and determine rights and responsibilities in the hands of individuals. However, if they are in disagreement, then the family should be regulated by the state, placing more emphasis on the child's best interests. …

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