California Light: The Connecticut Cooperative Post-Adoption Agreement

Can a child have three parents?  In California she sure can.

This week the New York Times published an article about a California bill just signed by Gov. Jerry Brown.  The new law allows the courts to recognize situations when a child has three or more legal parents.

This has implications for same sex couples, because of the diverse ways lesbian and gay parents have their children.

According to the bill’s sponsor, Senator Mark Leno, the legislation was intended “to address the changes in family structure in California, including situations in which same-sex couples have a child with an opposite-sex biological parent.”

According to Leno:

Courts need the ability to recognize these changes so children are supported by the adults that play a central role in loving and caring for them.  It is critical that judges have the ability to recognize the roles of all parents so that no child has to endure separation from one of the adults he or she has always known as a parent.

The history on the California bill is that it arose on the heels of a California appeals court case, In re M.C., in which the court ruled that a child could never have three parents.  It would have been possible for the In re M.C. court to rule more narrowly and hold only that the child that was the subject of the case did not have three parents, but it did not.  Since the court chose such broad language, California legislators filed bills to attempt to protect parent-child relationships in those situations where there truly are more than two people who function as the child’s parents.

The California bill is novel in that, to the best of my knowledge, it is the first time there has been an actual law acknowledging that a child may have more than two parents.  Still, trial courts in a number of states have indeed held that a child can have three parents.  As long ago as the 1980s, a Louisiana (!) court found that a child who had a relationship with both his biological father and his mother’s husband had three parents.

I didn’t find any evidence of such a case in Connecticut, but it is relevant to mention that Connecticut is one of the  states that allows for cooperative post-adoption agreements (also referred to as post-adoption contact agreements) under Connecticut General Statute § 45a-715.

These agreements allow a parent to relinquish her or her parental rights — making to possible for a child to be adopted — while retaining legally enforceable visitation rights.  (As long as visitation remains in the child’s best interest.)

With cooperative post-adoption agreements, a child has only two legal parents — the adoptive ones — but the biological parent is able to retain a legal connection through visitation.  It doesn’t go as far as California’s three legal parents, but it does provide some legal recognition of the realities of modern complex family life.

In the LGBT context, a post-adoption agreement could, for instance, allow a lesbian couple and their known donor to structure their relationship so that the donor consents to a second parent adoption while retaining legally enforceable visitation.  A gay couple and their surrogate could also choose to enter into this kind of arrangement if it appeals to all three people that the child have two fathers and the surrogate maintain ongoing contact with the child without legal parentage.

(This will no doubt virtually end the conservative far right’s argument against gay parenting, as now Heather can have two mommies and a daddy.)

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Written by Meghan Freed