Wednesday, January 13, 2016

Three's Company - Who is a Legal Parent? Part 7

Post by Julie Tolek.  Julie is an Associate at Skylark Law & Mediation, PC and runs her own practice, Think Pink Law.  Julie's practice includes family law & divorce representation, firearms licensing & NFA trusts, estate planning & probate, and adoptions.

Three's Company: Three Parent Adoptions

When most people think of legal parenthood, they probably think of it as a single or joint endeavor with another person. An often overlooked but equally legal option is to have more than two legal parents. In situations in which there are more than two people who would like to care for a child and have legal parental rights, a three parent adoption can accomplish this and bring together three legal parents to create a larger loving and supportive family setup.

In Massachusetts, there are a several cases involving three parent adoptions, most of which have been handled by Joyce Kauffman, an attorney widely recognized for her work in assisted reproduction, adoption and the rights and needs of lesbian, gay, bisexual, transgender and queer (LGBTQ) individuals and families.

In a three parent adoption, all three parties are the legal parents of a child.

Let's take a look at an example. Sue and Lisa are a married couple who would like to have a baby. They ask their long time friend Tony to be the sperm donor for Sue, so she can get pregnant and carry the baby. The natural or biological parents of the resulting child would be Sue and Tony, and thus it would typically be Sue and Tony who would have legal rights in raising the child. However there are a few other options.

First, Tony could give up his legal rights to be the child's parent. After he gives up his rights, Lisa could file a petition for a second parent adoption where she would adopt the child, with Sue’s consent of course, and Sue and Lisa would both be the legal parents of the child. This is usually the typical family setup that comes to mind with a second parent adoption and a sperm donor, especially if the sperm donor is unknown (which is different from our example here, where Tony is a friend who is a donor).

Typically a child born into a marriage is presumed to be a child of that marriage and both spouses’ names will go onto the birth certificate. In Massachusetts the two spouses’ names would be on the child’s birth certificate. However, it is important to also keep in mind that the ever changing landscape of marriage, even with the recent US Supreme Court decisions, is one where same sex parents cannot be too thorough in protecting their rights as parents and as a family unit. Read our previous post for more information on co-parent adoption.

Back to our family example with Sue and Lisa. Three parent adoption is also an option for Sue, Lisa, and Tony to consider. If Tony wants to stay involved in the child’s life, or has already been involved as the child grows up, he does not have to relinquish his legal parenting rights. In this case, where Sue, Lisa, AND Tony want to parent the child, Lisa could again petition for a third parent adoption without Tony having to relinquish his rights as a father.

While there is no statute specifically naming three parent adoptions in Massachusetts, there is also nothing preventing three parent adoptions. Cases in Massachusetts from the 1940s support three parent adoptions, in that any “person” can adopt a child, citing no limitation on how many persons this might include (Petition of Curran, 314 Mass. 91 (1943)) and that the only real question is whether the best interests of the child would be served by the adoption. (Merrill v. Berlin, 316 Mass. 87 (1944)).

In a family situation where there are more than two loving, involved parents of a child, a three parent adoption could be a great option to ensure that all three parties establish their legal parental rights and make it easier to actually be an intact family without worrying about future legal issues regarding any of the parents’ rights.

Previous Post: Co-Parent Adoption - Who is a Legal Parent? Part 6

Next Post: De Facto Parents - Who is a Legal Parent: Part 8

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