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By Markus Risinger and Mallory Scott
With a new generation of parents deciding to explore familial arrangements outside the traditional two-parent family, a multitude of issues relating to custody and caretakers have also emerged within the past decade. In California, a 2013 law allowed for more than two individuals to be recognized as parents of a child if they can establish that “recognizing only two parents would be detrimental to the child” [1]. Other states have followed their lead and issued similar birth certificates while also allowing adoptions to be granted to more than two parents [2].
In 2017, a three-parent family (and self-described “polyamorous throuple”) out of California received media attention after gaining the right for all three to be listed as fathers on their children’s birth certificates [3]. One of the three fathers provided DNA for their child to be born via surrogacy with an egg donor, intending to raise the child as a group of three within one household. However, the ability for all three men to be recognized as legal parents was not automatically granted with this arrangement, leading them to pursue legal assistance in gaining parental rights for all three.
The goal of all three having parental rights was to have decision-making authority and protect potential parenting rights if the three men were to separate. Another layer of complexity within this case was that two of the three men were legally married, and neither of those two was the biological father of their shared child. Having established this right for their family, the fathers repeated the process at the birth of their second child. During the second process, the biological father was one of the married fathers, but all three were automatically able to be added to the birth certificate.
How might this development allow third parties, acting as parents or otherwise, to gain authority over a child’s life? Even if another individual became involved in parenting a child with good intentions, recognizing another party will create another avenue for litigation if the parties are to separate. This was one of the primary reasons cited by the three-parent family in California for wanting to ensure that all three fathers had legal decision-making authority over their child. The family wanted to ensure that in the event of a split, all relevant parties, including the bio dad, could maintain access to their child without further legal involvement.
Although some states have amended their law to address situations like the one above, the rights of parents remain nationally relevant legal issues. The 2017 Supreme Court ruling on Pavan v. Smith was a milestone case requiring both parties in a married couple to be listed on their children’s birth certificates following the landmark ruling of Obergefell v. Hodges, nationally recognizing same-sex marriages, in 2015. In the case of Pavan, two parents in Arkansas were each deprived of being listed on their respective children’s birth certificates because they did not give birth [4]. Since married fathers receive presumptive parental rights if their wives give birth while married, the Pavan decision requires all married parents to be given the same legal benefit (i.e., if a child is born during a marriage, the spouses are both presumed to be the parents of the child by law) [5].
In Arizona, A.R.S. 25-814 recognizes a presumption of paternity if (1) the mother of a child is married at the time of conception, (2) a genetic test affirms paternity by at least 95%, or (3) a birth certificate is signed by two unmarried biological parents [6]. This is similar to the rule existing in Arkansas during the Pavan case and had to be overcome for the two nonbiological mothers to have recognized rights. The same statute that establishes the presumption of paternity still allows for it to be overcome, or “rebutted by clear and convincing evidence,” that the court may use to determine paternity by decree. The Arizona statute still uses gender-specific language that may prove challenging for future parents that hope to add parties to parenting their children or seek to parent outside of traditional gender roles. However, recent case law in Arizona has also indicated that same-sex couples can overcome the presumption of paternity or nonbiological parenthood despite the statutory language. The state Supreme Court ruling on McLaughlin v. Jones in 2017 held that “[t]he marital paternity presumption is a benefit of marriage, and…the state cannot deny same-sex spouses the same benefits afforded opposite-sex spouses” [7].
With the national precedent coming from the Supreme Court and more state-specific results from cases like McLaughlin, Arizona has demonstrated some willingness to provide protections for new types of family structures. While these families are currently able to live comfortably under existing judicial precedent, there still is vast room for growth in ensuring this change can occur throughout the state.
[1] Three dads, a baby and the legal battle to get their names added to a birth certificate | CNN
[3] Massachusetts Issues First 3-Parent Birth Certificate – Above the Law
[4] Pavan v. Smith, 582 U.S. 563 (2017).
[5] Id.
[7] Mclaughlin v. Jones, 401 P.3d 492 (Ariz. 2017). (via Presumptions in Paternity Cases: Who Is the Father in the Eyes of the Law? (americanbar.org))
Marcus Risinger is an attorney at Woodnick Law, PLLC and MLS faculty associate teaching administrative regulation at the ASU Sandra Day O’Connor College of Law. He practices in all aspects of child welfare matters, including Title 8 dependency/severance, Title 13 defense litigation, Title 25 parent and third-party rights, Title 41 administrative controversies, and appeals.
Mallory Scott is a law clerk at Woodnick Law and a 2L at the Sandra Day O’Connor College of Law.
