Traditionally, the family was defined as a mommy, a daddy, and 2.5 kids. In our modern times, the traditional notions of how to define a family continues to be challenged. As divorces have become commonplace, the traditional notion of a family unit as having a mommy and daddy has flown out the window to a more common situation of a mommy in one house and a daddy in another house, with stepparents in each place.  Increasingly, the spotlight is shining on same-sex parenting units as a family. 

In many states, including Texas, the law remains archaic in addressing the needs of non-traditional family units.  Obtaining the right to seek relief from a court (called standing to sue) remains difficult for a non-biological or non-adoptive "parent" who has maintained a significant relationship with a child (whether same-sex or hetrosexual in nature).  And, the Troxel case out of the United States Supreme Court vitiates the right of most people to invade the biological or adoptive parent’s decision-making (as to what people should have a relationship with a child) unless there is some question of parental fitness.  This is true even when the non-biological or non-adoptive "parent" overcomes the initial hurdle of standing.

The Boston Globe this week illuminates the new appearance of a family in its article Johnny Has Two Mommies — And Four Dads.  The article discusses a summer movie called "The Kids Are All Right" where a man learns that he is the father of two teenagers by sperm donation with two lesbian mothers. (I never heard about this movie.  Did you?)

The article points out:

"In the age of assisted reproductive technology, the increasing acceptance of same-sex partnerships, and a steady growth in ‘blended’ families, more parents and more children are finding that traditional notions of the nuclear family don’t accurately reflect their lives and relationships.

"Still, even in a time of changing attitudes about who can be a parent, the legal and social definition of a family still has certain rules — a family can be run by a single mom or a single dad and, increasingly, by two moms or two dads, but it can’t have three parents, or four. For a long, long time — going back to when the English common law first started codifying such things — the law has set the maximum number of parents a child can have as two. Only two people, in other words, can enjoy the unique set of rights to determine a child’s life — and the unique set of responsibilities for the child’s welfare — that legal parenthood entails. That matches how most people think about parenthood: Two people, after all, are how many it usually takes to make a baby in the first place.

"Now a few family-law scholars have begun to argue that there is nothing special about the number two — if three or four or five adults have a parental relationship with a child, the law should recognize them all as parents. Going beyond two, these scholars argue, would better reflect the dynamics of the modern family, and also protect the children in such families. It would ensure that, even in the event of a split or major disagreement between the adults in question, the children would not be deprived of the affection, care, and financial resources of any of the people they have grown up regarding as their mothers and fathers.

" ‘The law needs to adapt to the reality of children’s lives, and if children are being raised by three parents, the law should not arbitrarily select two of them and say these are the legal parents, this other person is a stranger,’ says Nancy Polikoff, a family-law professor at American University’s Washington College of Law.

In a few recent cases, courts seem to have agreed with the calls for multiple parents. But critics argue that tinkering with the definition of parenthood in this way threatens to dilute the sense of obligation that being a parent has always carried, and that increasing the number of legal parents only raises the likelihood that family disputes will arise and get messy and find their way into court. Not to mention that having judges routinely declare that Heather has two mommies and three daddies would represent a radical cultural shift, and one that, like gay marriage, many will find threatening.

Ultimately, the legal definition of parenthood is part of a broader philosophical question: What is a family? And what is it for? While some scholars have focused on expanding the number of parents, others argue that the law needs to do more to recognize the social context in which families exist, and the extent to which child care is actually performed by people who aren’t part of the nuclear family at all.

And as supporters of revising the definition of parenthood point out, there’s nothing tidy or biologically preordained about today’s prevailing notion of parentage, one that often has to shoehorn families jumbled and reassembled by divorce, adoption, and reproductive technology into one standard model, in ways that can prove disruptive to the families in question.

" ‘The law determines what makes someone a legal parent, not marriage, not biology. Those things don’t determine who is a parent, the law does,’ says Polikoff.

In California, a three-party adoption has been recognized.  When asked why that was important, the parents replied that there is a perceived difference between being a "parent" under the law versus a friend or "uncle". Third-parent adoptions remain extremely rare, and only a handful have been done, mostly in Massachusetts and California. But some legal scholars see in them the seeds of a larger shift in how the law defines parenthood. These advocates point to a few recent court decisions that suggest a willingness to recognize more than two parents.

It would not be unheard of for the law to redefine parenthood.  For example, under English common law, children born outside of marriage had no parents at all under the law.  But, during the 20th century, the law erased the difference between legitimate versus illegitimate children in recognizing parenthood.  And, court decisions in the 1960’s and 1970’s, the Supreme Court struck down laws penalizing children born to unmarried women.

I have always maintained that a child cannot have too many people love him or her. That being said, I think it may be polyanna to think that multiple parenting families can work in reality.  As a Divorce Lawyer in Dallas, Texas who deals with parenting time agreements in Texas and court orders for possession schedules, it sounds like a nightmare to draft a co-parenting agreement with 2 moms and 1 dad, or 2 dads, 2 stepmoms, and a grandparent. all considered as parents!  Can you imagine the back and forth a child will suffer through in such a situation?

Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 30+ years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW for multiple years. She was named one of the Best Lawyers in America and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.