State law should not force family law judges to rule in ways that hurt children. Yet, unfortunately, in a small handful of cases, state law forces family law judges to send children to foster care and separate them from a loving parent who is already caring for them, no matter what the judge believes the child's best interests require.
Here is how the problem arises.
Assume a woman gets pregnant. But then not long afterward, she marries another man. The child say, a girl is born during the couple's marriage. At the same time, the biological dad remains involved in his daughter's life and takes on all the responsibilities of a parent.
Under current California law, all three of these people meet the current legal definition of a parent: the biological mom, her husband and the biological father.
Now assume that, due to tragic circumstances, the child's mother and her husband become unable to care for the child. The family court must decide whether to send the girl to foster care.
The biological dad steps up and asks a court to recognize him as a parent so his child can be placed with him, inherit from him, be on his health plan and be a part of his family.
Obviously, a judge should have the latitude to acknowledge the biological dad as the girl's legal parent, right?
The judge should be able to, but he can't.
California law currently says that even if three people satisfy the current legal definition of a parent, a judge can recognize only two parents, even if a child will be harmed as a result.
Which brings us to Senate Bill 1476 by state Sen. Mark Leno. The bill narrowly addresses this kind of unusual situation by providing that if more than two adults meet the current legal test of who qualifies as a parent, then a judge has the discretion to recognize more than two adults as legal parents, but only if it is (quoting from the bill) "required to serve the best interest of the child."
Some critics claim this bill will result in large numbers of legal parents. But, this is impossible. There are only 24 hours in a child's day for an adult to parent a child, and so there are only a limited number of chances to change a diaper, bandage a knee, drive a child to soccer, to be a parent. For those who seek to establish parentage without a biological connection, being a legal parent under current law requires far more than just being an adult who sometimes helps out. One has to be a real parent to the child, with the deep and enduring involvement that implies.
Some have claimed the bill will worsen custody battles. Adults can behave very badly in custody disputes. But, the possibility of parents behaving badly when their relationship ends has never been and should never be a reason to deny someone the status of being a child's legal mom or dad, especially when refusing to do so will hurt a child.
Before recognizing an additional legal parent, the bill says that a court must find that the adult is already a parent under current California law, and then additionally that doing so is "required to serve the best interest of the child." In many instances, recognizing more than two parents may not be "required to serve the best interest of the child." However, there are many examples of families where three parents have successfully shared parental responsibility for a child for many years. When weighing how to protect children, judges should not be compelled to pretend that these families do not exist.
It is simply wrong for state law to force a judge to hurt a child, period. SB 1476 deserves the support of everyone whose first priority is protecting California's most vulnerable citizens: children.