Court Grants Custody to Three Parents – We May Not Need 'Duncles' Much Longer

The trend of the law is clear: families will continue to grow in new and surprising ways.

baby with parents handsThe latest history-making court ruling in the world of family formation does not, for once, involve assisted reproductive technology. But it almost did! (If only a fertility doctor had not declined to help the parties to this case.) The latest judicial pronouncement from a New York court is relevant for those wanting to form a family outside of the traditional two-parent model. And it adds the term “tri-custody” to our growing vocabulary list.

The Soap-Worthy Facts. In 1994, the plaintiff, Dawn M., entered into a conventional heterosexual marriage with Michael M. Like many couples, Dawn and Michael hoped to have a child. But because of infertility issues, the couple never conceived.

In 2001, when Dawn’s close friend and neighbor, Audria G., broke up with her boyfriend, Dawn invited Audria to move in with her and Michael. Michael, Dawn, and Audria eventually considered themselves a family, and they each agreed that they wanted to expand their family by adding a child.

The parties approached Dawn’s fertility doctor, asking that the doctor inseminate Audria with Michael’s sperm. But the fertility doctor declined, based on Audria not being married to Michael. (Yes, fertility doctors can be pretty judgy.) So Michael and Audria did things the old-fashioned way, and conceived a child through sexual intercourse. Michael was probably feeling pretty lucky at that point.

Audria successfully conceived and gave birth to baby J.M. in January 2007.

The Plot Thickens. The tri-parent family purportedly functioned well for the first year of J.M.’s life. Audria and Dawn even traded off night duty and caring for their baby. But relations between Dawn and Michael soured, and the two women decided to move out on their own. They took J.M. with them. Dawn and Michael divorced soon after, and a court granted joint custody between Audria and Michael. That left out Dawn, who was not genetically related to J.M.

Although J.M. primarily lived with Dawn and Audria, Dawn later brought suit to secure her legal rights to J.M. Michael objected. The court was sympathetic to Dawn, holding that she deserved both legal rights and shared custody of now 10-year-old J.M.:

Sponsored

In sum, [Dawn], [Michael], and Audria created this unconventional family dynamic by agreeing to have a child together and by raising J.M. with two mothers. The Court therefore finds that J.M.’s best interests cry out for an assurance that he will be allowed a continued relationship with [Dawn]. No one told these three people to create this unique relationship. Nor did anyone tell [Michael] to conceive a child with his wife’s best friend or to raise that child knowing two women as his mother. [Michael’s] assertion that [Dawn] should not have legal visitation with J.M. is unconscionable given J.M.’s bond with [Dawn] and [Michael’s] role in creating this bond. A person simply is responsible for the natural and foreseeable consequences of his or her actions especially when the best interest of a child is involved.

I can’t tell if the “reasonably foreseeable” line above is a shout-out to Palsgraf outside of the tort context, but I’d like to think it is. So remember, whether it’s fireworks dropping at a train station, or making a baby with two other people, a person is responsible for the reasonably foreseeable consequences of his or her actions.

California (Surprise!) Has Allowed More Than Two Legal Parents For A While Now.

Of course, New York was not the first state in the union to grapple with the limitations of the conventional “two parents per child” rule.

In 2013, California passed a statute specifically providing that a child can have more than two parents. That statute was prompted by a case called In re M.C., which was another case full of significant relational drama. Sadly, unlike J.M. in New York, no parent was in a great position to parent baby M.C. (when M.C.’s bio mom went to jail, bio dad was across the country, and bio mom’s wife was in the hospital… thanks to bio mom attempting to murder her).

Sponsored

And beyond our borders, Ontario recently updated its parentage statute to recognize up to four parents to a child. At the very least, it will be hard for all four of those people to keep their stories straight about whether the kids get dessert!

More seriously, the arguments against more than two parents tend to be rooted in support for traditional families and against additional complications. But regardless of your political viewpoint, the trend of the law is clear. Families will continue to grow in new and surprising ways, and the law is likely to struggle to catch up with those unique familial structures. Of course, it is only a matter of time until we see even more challenging custodial splits where a child is pulled more than two directions. In other words, the natural consequence of triple custody is that soon a child’s time will have to be divided between three houses.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.