In the case of D.G. vs. K.S., a gay, married couple and their female friend, Kitty, set out to have a baby. One of the couple, Darren, donated his sperm; the other, Sam, gave the child his last name. Prior to the birth, they all agreed that they would be integrally involved in the raising of this child, and, when their daughter, Olive, arrived, they did just that. Olive spent time with both her mom and her dads at their respective homes in New York and New Jersey. She frequently traveled with Kitty to Costa Rica, spending summers there. Her fathers were involved in decisions regarding her education, and contributed emotionally, as well as financially to the child and her upbringing. They all took part in an article written in Marie Claire magazine on tri-parenting, and told their unique story on several television shows. All seemed to be working out well, with Olive growing and thriving in her special environment. And, despite their agreement and arrangement, nothing was put into writing regarding Olive.
As will happen with many families, this one, even with good intentions, hit some trouble. Kitty fell in love with a man and wanted to move with him and Olive to California. Darren and Sam did not want Olive to move so far away and, unfortunately, a court battle ensued. The fathers filed for custody. Mom filed for custody and for permission to relocate. Sam, Olive’s non-biological dad, filed for legal recognition as Olive’s father. And, this is where the case gets really interesting.
The issues of custody, parenting time, relocation and even those regarding naming someone a “psychological parent” of a child are all well settled in New Jersey case law and statute. The over-arching principle that guides judges is always what is in the best interests of the child. Using that theory as a cornerstone, the courts make decisions about children every day. But, what about Sam being legally designated as Olive’s father in this case?
While the court did indeed find Sam to be Olive’s “psychological parent,” it would not go so far as to legally name him Olive’s father. Why? The court relied on the New Jersey Parentage Act which specifically defines a “father” as one who biologically fathers a child or as one who legally adopts a child. In this case, Sam did not fit into either category. In fact, the court specifically noted that Sam had not attempted to adopt Olive. Again, the court found Sam to be Olive’s “psychological parent”, and with that designation, Sam pretty much stands in the same shoes as that of a biological or adoptive parent. He can file for custody. He can file for parenting time. He can fight for access to Olive’s educational and medical records. But, he is not legally Olive’s father unless or until he formally adopts Olive.
It is significant that the court in this case made mention of Sam not having filed for adoption of Olive, because it is unclear if this is even possible in New Jersey. Olive has two fit, biological, legal parents in Darren and Kitty. No one is suggesting that either Kitty or Darren give up their parental rights to Olive so that Sam could file for her to be adopted. So, if permitted to adopt, would Olive then have three legal parents?
There are a handful of states that allow a child to have more than two parents. In 2013, California passed a bill allowing children to have more than two parents in reaction to a case of one child with two mothers and a father. In other states, such as Louisiana, Oregon, Washington, Massachusetts, and Alaska, courts have recognized third-parent adoptions in individual cases. In the District of Columbia and Delaware, semen or egg donors can be “de facto parents,” so a child could, conceivably, have three parents. To be sure, it is difficult to know just how many states have allowed three-parent adoptions, because of the needed privacy that surrounds adoption proceedings.
And, there are skeptics of the multi-parent model: According to the article “Three (Parents) Can Be a Crowd, But For Some It’s A Family” by Gabrielle Emanuel, “[n]ot everyone thinks three-parent families are a good idea. There are religious groups that disapprove, believing that parenting and marriage should be between a man and a woman.” And, Emanuel further reports, there are other skeptics as well. “Bradford Wilcox, a professor at the University of Virginia and director of The National Marriage Project, says this is uncharted territory. ‘I think the concern here is that three parents will have more difficulty giving their children the kind of consistency and stability that they need to thrive as children and as young adults as well,’ Wilcox says.”
The court in Kitty, Darren and Sam’s case here in New Jersey referred to the current state of the legislature as found in the New Jersey Parentage Act. As stated earlier, the Act defines a legal parent as a biological one or an adoptive one. The court stated that in order for Sam to be named the legal father of Olive, the Act would have to be amended, as it was in California, for the court had no power to change the definition of legal parent found in the Act.
So what’s next for Sam? It is not known what his future plans may be. He certainly has the ability to file to appeal the court’s decision with regard to not naming him a legal parent of his daughter, but on what grounds? The Parentage Act is fairly clear and the court’s reliance on the Act seems sound. Perhaps he will file to formally adopt Olive, the results of which may be front-line in New Jersey. Or, maybe New Jersey will follow suit with California, and enact legislature that allows children to have more than two legal parents. Or, maybe this will be all we hear from Kitty, Darren and Sam, legally. Sam may be content with being designated as a “psychological parent” to Olive and enjoy all of the rights and responsibilities that that encompasses. Or, maybe Olive’s parents will work it out amongst themselves going forward and put their court battles behind them. Stay tuned.
Do you have custody issues related to tri-parenting or have questions about what it means to be a psychological parent? Our family lawyers are here to explain your rights and legal options. Please contact us to schedule your initial confidential consultation.