The American family structure is undergoing increasing variance and change at a speed that leaves the legal system in the constant position of catching up.
Around half of the jurisdictions across the United States are shifting away from the traditional test which defines a parent as biological or adoptive. Enter tri-parenting agreements, wherein three people are granted parental status of a child.
“We are starting to see more and more of it, largely because people are mobile and you can have children in so many different ways,” says Eric Wrubel
, a family law attorney at Warshaw Burstein in New York City.
He and Sarah Jennifer Jacobs, a family law attorney at Jacobs Berger in Morristown, New Jersey, have been on the front lines of these changes: Wrubel litigated a case to expand the definition of legal parent in New York, and Jacobs represented one biological parent and one non-biological parent in a tri-parenting agreement custody dispute.
Psychological Parentage v. Legal Parentage
Some same-sex couples are entering into multi-parenting agreements with their donor, surrogate or gestational mother. Raising a baby together might begin smoothly, but as with two-person parenting, unforeseen circumstances such as relocations, deaths, divorces
and remarriages can have legal consequences. When multi-parenting families enter into the legal mix, even the most basic questions can feel unanswered.
Can there be a third parent? Yes. However, there remains an important distinction between a psychological parentage and legal parentage.
A psychological parent is awarded the same rights as a legal parent in the family court construct, yet they are not recognized as a legal parent in the eyes of the federal government. For example, psychological parentage establishes a legal right to things such as child custody, parenting time and child support. In areas where family law constructs are used, such as hospitals and schools, the psychological parent can have an equal say. So far, the rights of a federally recognized legal parent (biological or adoptive) that are not awarded to a psychological parent include entitlement to government benefits and the child being identified as next of kin.
“I think everyone is working on it,” Jacobs says. “One of things that the court does understand is that there are so many varieties of parenting structures out there now and so many different definitions of the word family. The court is really having to look at if the child is bonded to all of these people—three, four, five, however many there are.”
In legal matters pertaining to the family, the best interests of the child is at the center of the discussion. That includes a focus on consistency and stability in the child's life.
According to Wrubel, a written preconception agreement is an important way to plan for the future when thinking about entering into a multi-parenting arrangement.
“In the immediate it sounds great. In the long-term, you need someone to sit down with everyone and say, ‘OK, let’s talk about this,’ because nobody is thinking that far ahead,” Wrubel says. “Matrimonial lawyers
do because that’s how we’re trained.”
Preconception agreements establish that the party agrees to raise the child together. These agreements can outline the responsibilities of each parent. Certain categories of decisions—such as medical or school-related—may be assigned to one parent.
Finding a parenting coordinator to help the parties resolve differences on decisions is an alternative way to handle decision-making. Wrubel says families might find a different rhythm as life goes on, but the written agreement remains an important arrangement to fall back on.
Many factors need to be considered before deciding on a tri-parenting agreement. The most important factor? “How well you know each other,” Wrubel says.
Having compatible personalities and similar parenting styles contribute to providing the child with consistency. “Can you maintain homes that are consistent? Is someone really rigid and the other person more of a freewheeling, free spirit? They may not get along so well,” Wrubel says.
According to Jacobs, a preconception agreement is valid under contractual law but may not establish any parental rights for the third parent. Check the laws in your state, but typically, it takes the actual birth of the child for someone to go to court seeking parental rights.
Through the Eyes of the Child
"What is the narrative that this child is going to be told about their life when they are at an age when they start to begin to understand that?” Jacobs asks. “What plan are you putting in place for them to identify who they are, what their family structure looks like, who their parents are?”
“If the child is at an age where they can express themselves, that’s absolutely critical to any discussion about what is in the child’s best interests,” Wrubel adds.
In New York, in 2016, the Brooke S.B. v. Elizabeth A.C.C. decision marked the first court ruling that a non-biological parent can seek legal parental rights, regardless of whether or not the rights of the biological parents have been terminated. Wrubel was the appellate counsel on behalf of the child.
In another New York case, Dawn M. v. Michael M., interviews with the child played an important role in confirming that the child identified themselves as having three parents.
“Clearly the bond that exists with someone that is parenting that child is extremely important. To sever that bond can have a very detrimental effect on the child,” Wrubel says. “I think you’d be hard-pressed to find a psychiatrist or psychologist who wouldn’t say, ‘You can’t get rid of one of these people. They are the child’s parents. This is who the child knows.’
“It may be daddy, papa and mom, but they are all providing something different. They are all providing something this child needs.”
For more information on this area, see our overview of family law