February 15, 2022

The Next Normal: States Will Recognize Multiparent Families

[Cross-posted from Washington Post]

By Courtney G. Joslin and Douglas NeJaime

It soon could be unremarkable for a child to have three or more legal parents. After months of political wrangling over how to support families, this may sound fantastical, but it’s fast becoming reality: Six states — California, Delaware, Maine, Vermont, Washington and most recently Connecticut — have enacted laws over the past decade expressly allowing a court to recognize more than two parents for a child. Many others, including Massachusetts, are considering similar proposals.

These new laws have been spurred, in part, by the rising numbers and public profile of LGBTQ families and others with children conceived through assisted reproduction. In many of these families, one or more parents are not genetically related to their children, and many states now legally recognize these “intended parents.” When we realize that genetic connection isn’t required for a legal parent-child relationship, and that social criteria are relevant, limiting the number of parents to two no longer seems necessary or logical.

These multiparent laws enable courts to protect parent-child relationships as they exist in the world. This is important. Legal recognition is more than a bureaucratic formality: When parent-child bonds lack legal protection, children suffer. They may be denied crucial benefits — unable to access health insurance through their parent or receive government aid. Worse yet, when a child’s relationship to a parent is not recognized under law, that relationship can be permanently severed — for instance, if there is a custody dispute or if the legal parent dies. If the child enters the child welfare system, they may be removed from a legal parent and placed in foster care, rather than placed with another person whom the child considers a parent.

Such separation can have devastating and long-term developmental consequences. As the American Academy of Pediatrics explained more than two decades ago, children’s “need for continuity with their primary attachment figures” is “paramount.” Peer-reviewed research across different contexts, including same-sex-parent families and foster families, suggests that ending a child’s relationship with a parent is traumatic, even when there is no biological or adoptive tie. Studies show that the loss of a parent can put a child at higher risk for addiction and psychiatric disorders and disrupt healthy development.

Some commentators have expressed fear that recognizing multiparent families will exacerbate instability and conflict in children’s lives, because they will be torn between multiple authority figures and multiple households. Elizabeth Marquardt worried about “the enormous risks” of such a change, asking in a 2007 op-ed for the New York Times, “If we allow three legal parents, why not five?” A family court magistrate in Ohio claimed last year that “children will be caught in three or four worlds.” Such concerns assume that multiparent recognition is relevant only to a relatively small and relatively new subset of families — LGBTQ families, families created through three-person IVF or polyamorous families, to name a few — and that the risks of legitimizing or normalizing multiparent families are largely unknown and unknowable.

But multiparenthood is hardly new. We are working on the first nationwide empirical study of case law from 1980 to the present on “functional parent doctrines” — laws that allow courts to treat a person as a parent, even if that person is not the child’s biological or adoptive parent. Our preliminary findings show that multiparent families have long existed and that they take a wide variety of forms. Examples include children who develop parent-child relationships with one or more stepparents, as well as children who have living biological parents but are raised primarily or exclusively by other relatives or friends. Long before statutes expressly permitted it, courts extended parental rights to people besides a child’s biological parents. Such decisions reflected the understanding that these relationships can be vital to children and that protecting them is often critical to children’s well-being.

To give just one example, these doctrines allowed the West Virginia Supreme Court, in 1990, to continue a child’s placement with his grandmother, with whom he had lived for much of his life, even though he had two parents. In another case, the same court ensured that a child could be cared for by both his legal parent and the aunt and uncle he viewed as parents. “It is a traumatic experience for children to undergo sudden and dramatic changes in their permanent custodians,” the court explained, and the couple was “too important” for the child “to be deprived of a continued relationship with them.” To avert this type of trauma, courts often issue orders that “foster the emotional adjustment of the children” and seek to “maintain as much stability as possible in their lives.” Multiparent recognition has made children’s lives steadier and more secure, not less.

The next normal, then, may not be a sweeping legal or societal change, but something simpler: more jurisdictions recognizing and protecting the families that exist today, right now.