Tri-Parenting

The court's major objection to a broad de-facto parent doctrine was that it required a fact-based threshold test, leading to parents being forced to defend themselves from meritless claims in full-blown evidentiary hearings. “While some courts have opened their doors to these claims,” the court stated, “we remain disinclined to follow suit absent an imperative from the General Assembly, lest every domestic break-up with children in the household become a potential battleground for child visitation and custody by ex-paramours, or even mere cohabitants.” 95 A. 3d at 426. The decision left the door open, however, to parties who had taken such steps, such as step-parents seeking third-parent adoption, or spouses attempting to form a family via artificial insemination.

The Vermont court's analysis does make some sense. Psychological parent claims proliferated during a period of time when same-sex partners were not permitted to marry. They no longer face that impediment. In addition, the potential downside is all too real. Circe Hamilton recently described for The New Yorker the difficulties she endured when her former partner, Kelly Gunn, attempted to prevent Hamilton from relocating to London with her adopted child. The adoption was planned while the couple was together, but it did not occur until after they separated. Hamilton adopted the child as a single mother, but she remained friendly with Gunn, who over time developed a relationship with the child. Eventually Hamilton won her case, but she was first forced to pay vast sums for legal assistance she could ill-afford, as well as to delay her carefully thought out plans for the life she wanted to provide for herself and her child. Gunn v. Hamilton No. 309154/2016 (NY Supreme Court, New York County, April 17, 2017); Ian Parker, What Makes a Parent? The New Yorker, A Reporter at Large, May 22, 2017.

The difficulty of limiting claims, of course, is that it is not always clear where to draw the lines. What is clear is that the need to avoid harm to children and protect their best interests must remain the central concern. It follows that to preserve stability for children, third parties should be granted parental rights only after application of stringent standards, regardless of the applicable legal theory. Awarding custody and visitation to a third parent often means setting a child up to live in two households. While the two households may initially interact amicably, especially when all parties have entered into such an arrangement voluntarily, problems can arise down the line. Many children adapt easily to moving between two homes, but not all do, and it obviously becomes more of a challenge to move between three homes, or even four.

Ensuring That Intended Parents Have Parental Rights

It is important to recognize that our clients affected by laws governing parental rights do not all share the same goals. Some want to ensure their own legal status. Others want to ensure that a third party does not become a parent. Still others want to create a tri-parenting arrangement.

Initial legal parent status depends on how a child is conceived, and to whom, and in which state the child is born. After determining who has default or presumptive parental status, appropriate next steps will generally depend on how, if at all, the parties involved wish to change this status. Those seeking recognition as a legal parent may wish to take steps such as marrying the biological parent before a child's birth, and/or adopting the child as soon as legally possible. If available steps are not sufficient, then further actions may be in order, such as entering into signed agreements. Documents that may be appropriate in a given case include Parenting Consent Agreements and Powers of Attorney. Family law attorneys can be invaluable resources for parties with the wherewithal to plan ahead.

Modern families deserve modern legal solutions. As laws continue to change and evolve, so can the solutions we are able to offer parents.

*****
Bari Weinberger, a member of this newsletter's Board of Editors, is the founder and a managing partner of the Weinberger Divorce & Family Law Group.

Last month, we asked what we, as matrimonial and family law attorneys, can do to help our clients with tri-parenting concerns. The discussion concludes herein.

Objections to the Psychological Parent Doctrine

While many states have adopted the psychological or de-facto parent doctrine, many others have not. In Moreau v. Sylvester , 95 A. 3d 416 (Vt. 2014), the Vermont Supreme Court declined to embrace the concept in a case brought by a woman's former live-in partner. The court reasoned that the law did not need to protect parties who had not taken available steps to clarify their legal status, such as marrying the legal parent or attempting to adopt the child.

The court's major objection to a broad de-facto parent doctrine was that it required a fact-based threshold test, leading to parents being forced to defend themselves from meritless claims in full-blown evidentiary hearings. “While some courts have opened their doors to these claims,” the court stated, “we remain disinclined to follow suit absent an imperative from the General Assembly, lest every domestic break-up with children in the household become a potential battleground for child visitation and custody by ex-paramours, or even mere cohabitants.” 95 A. 3d at 426. The decision left the door open, however, to parties who had taken such steps, such as step-parents seeking third-parent adoption, or spouses attempting to form a family via artificial insemination.

The Vermont court's analysis does make some sense. Psychological parent claims proliferated during a period of time when same-sex partners were not permitted to marry. They no longer face that impediment. In addition, the potential downside is all too real. Circe Hamilton recently described for The New Yorker the difficulties she endured when her former partner, Kelly Gunn, attempted to prevent Hamilton from relocating to London with her adopted child. The adoption was planned while the couple was together, but it did not occur until after they separated. Hamilton adopted the child as a single mother, but she remained friendly with Gunn, who over time developed a relationship with the child. Eventually Hamilton won her case, but she was first forced to pay vast sums for legal assistance she could ill-afford, as well as to delay her carefully thought out plans for the life she wanted to provide for herself and her child. Gunn v. Hamilton No. 309154/2016 (NY Supreme Court, New York County, April 17, 2017); Ian Parker, What Makes a Parent? The New Yorker, A Reporter at Large, May 22, 2017.

The difficulty of limiting claims, of course, is that it is not always clear where to draw the lines. What is clear is that the need to avoid harm to children and protect their best interests must remain the central concern. It follows that to preserve stability for children, third parties should be granted parental rights only after application of stringent standards, regardless of the applicable legal theory. Awarding custody and visitation to a third parent often means setting a child up to live in two households. While the two households may initially interact amicably, especially when all parties have entered into such an arrangement voluntarily, problems can arise down the line. Many children adapt easily to moving between two homes, but not all do, and it obviously becomes more of a challenge to move between three homes, or even four.

Ensuring That Intended Parents Have Parental Rights

It is important to recognize that our clients affected by laws governing parental rights do not all share the same goals. Some want to ensure their own legal status. Others want to ensure that a third party does not become a parent. Still others want to create a tri-parenting arrangement.

Initial legal parent status depends on how a child is conceived, and to whom, and in which state the child is born. After determining who has default or presumptive parental status, appropriate next steps will generally depend on how, if at all, the parties involved wish to change this status. Those seeking recognition as a legal parent may wish to take steps such as marrying the biological parent before a child's birth, and/or adopting the child as soon as legally possible. If available steps are not sufficient, then further actions may be in order, such as entering into signed agreements. Documents that may be appropriate in a given case include Parenting Consent Agreements and Powers of Attorney. Family law attorneys can be invaluable resources for parties with the wherewithal to plan ahead.

Modern families deserve modern legal solutions. As laws continue to change and evolve, so can the solutions we are able to offer parents.

*****
Bari Weinberger, a member of this newsletter's Board of Editors, is the founder and a managing partner of the Weinberger Divorce & Family Law Group.