Biology, Genetics, Nurture, and the Law: The Expansion of the Legal Definition of Family to Include Three or More Parents

Abstract

Currently, there are at least five bases for recognizing parentage: biology, genetics, intent, marriage, and functional or de facto parentage. These many bases for parentage, combined with the realities of reproduction, cohabitation, and family interaction, are the reason why children can have more than two parents. In many states, however, to have three instead of two parents is legally impossible. For example, statutory restrictions may require the demonstration of one or two legal parents’ unfitness as parents before a third party can be granted parental rights; these restrictions also prevent the assertion of de facto parenthood. Limiting the number of parents a child can have is noticeably disadvantageous for a child with three fit, putative parents, as the child would be deprived of a parent-child relationship. Indeed, without the legal recognition of full parentage, children may be deprived of important sources of financial support and contact with their perceived parents, which may be traumatic to them.

Drawing from the best interests of the child standard, this article introduces a new doctrine for parental recognition, “parentage in praxi,” which requires (1) that a putative parent complete statutorily delineated requirements that culminate in them standing “in the shoes of a parent,” and (2) that state law operate to allow a child to have more than two parents — if doing so would be in the best interests of the child. A parent in praxi would have the same rights and obligations as a legal parent. By recognizing parentage in praxi, states can protect the relationships that children have formed with putative parents who may not be currently recognized as legal parents, regardless of the parents’ legal status in any sphere not concerning the well-being of the child (e.g., marital status, familial status, or gender).

Keywords: Family Law