Custody and Polyamory
May 5, 2012 1:28 AM   Subscribe

Can more than two parents have full legal (and physical) custody of a child?

I'm thinking in terms of a polyamorous relationship, wherein none of the parties are married, but all wish to raise a child together. Would 3 or more adults be legally allowed to adopt a child together? If one of the women were to conceive and carry the child, could all parties be awarded full custody?
posted by karminai to Law & Government (11 answers total) 2 users marked this as a favorite

What country are you thinking of? Most Western countries provide no legal recognition of polygamous/polyandrous relationships, if I understand correctly. May be different in countries where these are traditional practices.
posted by Perodicticus potto at 2:32 AM on May 5, 2012

This would, I'd imagine, depend heavily on your location--there are more than a few countries that allow polygamous marriages, and presumably it would be legal in those areas. I doubt very much that it's a commonly accepted arrangement in most other places.

In the US, adoption and custody laws vary by jurisdiction. I can't imagine that this would work most places--many states still don't allow two same-gender parents to share custody of a child, and I'd think that a three-party adoption would be very, very contentious if it were allowed at all. Additionally, at least in Ohio, for a child to be adopted by (for example) a stepfather, the biological father must agree to the arrangement and sign off on it, terminating his legal right to the child--the child would never be permitted to have more than two legal guardians. The bit about terminating legal rights is true in most, if not all, states--an adoption cannot proceed until the biological parent has relinquished their rights.

(IANA lawyer or custody expert, I'm just familiar with Ohio adoption laws and the many ways in which they fail nontraditional families of any sort.)
posted by MeghanC at 2:36 AM on May 5, 2012 [1 favorite]

IANYL but in the U.S. this is currently being worked on/advancing (very very slowly). For the best assessment of your personal situation (if you are in the U.S. (looks like maybe L.A.?)), contact the National Center for Lesbian Rights. They may also be able to refer you to international resources on this topic.
posted by anya32 at 3:20 AM on May 5, 2012

It might be interesting to note that a person who is a genetic chimera can actually have more than two biological parents, though it seems unlikely that any legal system will have dealt with this.
posted by XMLicious at 4:52 AM on May 5, 2012

There was at least one case in Canada were the court recognized 3 legal parents - I thin it was the lesbian moms and the male biological father.

The thing is that if the relationships are intact and everybody agrees, you can do whatever you want. Poly and nontraditional families can use consent forms to enable any parent to deal with the kids' school, for example.

The state only comes into it when there is a breakdown in the relationships and someone wants to enforce their conception of the relationship against someone else's conception.

The state of the law now varies a lot from state to state. In some cases, the biological parents have the winning hand. In other places, it's actually not that hard to exclude a biological parent as long as the putative legal parents are a straight (or in some place even gay) married couple.

Generally single parents are the most vulnerable to having someone else recognized as a parent against the parent's will (e.g. the private sperm donor or surrogate) because there is a long history of the state assuming that single parents (traditionally framed as fatherlessness) are not in a child's best interests.

(This info is almost entirely based on North America) since that's where I'm most familiar with these issues).

Poly and nontraditional families are now sometimes using cohabitation and parenting agreements, but their enforceability is questionable to non and for the time being they function best to help prevent the kind of conflict that leads courts that do not have the legal basis and/or will to recognize/respect those families' original intentions.
posted by Salamandrous at 6:23 AM on May 5, 2012 [2 favorites]

Ugh, sorry for the typos!
posted by Salamandrous at 6:25 AM on May 5, 2012

Just stepping in to confirm that in Ohio you can't have more than two (at least, not by any normal process) - I wanted to get sealed to my mom and stepdad, but the church insisted on there being a legal adoption first, so we couldn't do it (my dad would have raised all kinds of unpleasantries over the basic idea, but having to relinquish his rights was a profound non-starter.)
posted by SMPA at 8:23 AM on May 5, 2012

It depends on your jurisdiction. In most of the United States, it is not possible for a child to have more than two legal parents. In a few jurisdictions, state trial courts have allowed three legal parents, but as far as I know it hasn't yet been tested in an appellate court (much less any state's highest court). It is not explicitly allowed by any states' laws at this time.
posted by insectosaurus at 9:01 AM on May 5, 2012

I don't think any state would recognize parental rights in a polyamorous relationship--just the biological parents. I'm thinking of the plural marriages that still occur among Mormons out west--the state doesn't recognize the "extra" wives and I don't think a second wife could be a legal guardian of a first wife's child, even if they do live in the same house.

Although there's nothing to say that involved adults can't act as de facto guardians to the children in their home as long as the parents are on board. When our grandparents lived with my family, they could pick us up from school, take us to the doctor, take us on vacation, etc., even though they weren't our legal guardians. And a friend of mine actually lived with her ex-stepmother for a couple of years as a teenager. I don't know what the legal arrangements were--her father and mother did not terminate their parental rights, they were just messed up people and the ex-stepmother was able and willing to take her in, with the parents' full permission. There was nothing sketchy or underground about it--I think the parents had to get involved when certain decisions had to be made, but they were pretty much hands-off and let the ex-stepmom run the show (and my friend was much better off for it). I think technically it was an informal arrangement, but the ex-stepmom was fully empowered to do whatever she needed to do as my friend's guardian, including seeing her through a hospitalization for an emergency appendectomy. And at that point if the parents had fought to take her back after being with her stable, loving, ex-stepmom for a few years, I think any court would think twice about separating her from that environment.

All this to say--as long as the parents are on board and everyone's on the same page about who can legally do what, most states would not remove an otherwise well-adjusted child from a stable polyamorous home.
posted by elizeh at 9:41 PM on May 5, 2012

Most of the poly folks with kids in my acquaintance stay pretty damn simple and traditional regarding guardianship of the kids. It's regarded as the one area where it's just not worth it to push your luck -- one wacko complaint and one conservative judge can undermine a whole lot of common sense.

I've had friends make decisions that honestly I think are total overkill and somewhat paranoid, but I can't help but respect their rights to assess risk however they see fit, y'know?
posted by desuetude at 11:25 PM on May 5, 2012 [1 favorite]

FWIW, from 2007, not polyamory-related but -- Ontario's highest court has given legal parental status to the lesbian partner of a biological mother, essentially giving a young boy three parents.

The case is believed to be the first in Canada in which a child has more than two legal parents... the biological father, a friend of the lesbian couple, remains involved in the 5-year-old boy's life at the request of the two women
story here
posted by kmennie at 5:23 AM on May 6, 2012 [1 favorite]

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