Our culture is changing so rapidly that it can be difficult to keep up. The Supreme Court legalized gay marriage in 2015. Across the country, and certainly here in California, more and more people are experimenting with non-traditional models of non-monogamy, from open marriages to polyamory. The very issue of what makes a person “male” or “female” is hotly contested.
Many states still haven’t completely recalibrated their laws to reflect the new dynamics, and all of these relationship models affect parenting. Legalized same-sex marriages is still a young phenomenon, but a parent’s legal rights are mostly clear. In a situation where a couple invites another adult into their home as the third member of the relationship, more complicated questions arise.
And none of these newer scenarios cover the legal complications that have become everyday in our country. A child’s parents may be unmarried. Perhaps a pregnant woman marries a man who is not the biological father of her child. A partner in a monogamous marriage either gets pregnant by or impregnates someone else.
Assuming that the “traditional” model is this – one cisgendered man; one cisgendered woman; both the biological parents of a child; legally married; monogamous – let’s take a look at how the law currently handles parental rights in a “non-traditional” model.
One major aspect of parental rights is the issue of “paternity.” Paternity is the legal term for someone’s father. Regardless of anyone’s biological connection to a child, paternity is the standard that will determine the legality of their fatherhood. Put simply, you can be someone’s biological father by nature, but the law may not recognize you as such.
The Biological Parents Are Unmarried
California law, to date, is clear. Marriage is the key to a man claiming fatherhood of his child. When the parents are married, and they are both the parents of the fetus, the man will be granted paternity at the moment of birth.
If they are unmarried, the process becomes a bit more complicated. A man in that scenario will have to legally claim paternity. To do this, both parents need to sign a voluntary declaration of parentage document. The form will then be filed with the California Department of Child Support Services Parentage Opportunity Program (POP).
Same-Sex Marriage with an Outside Parent
This scenario sounds more complicated than it is. The legal boundaries are the same as in any heterosexual, stepparent scenario. Let’s say Fred, a man, was married to Linda, a woman. Eventually they divorced, and Fred married Jim, a man. If the legal status of Fred and Linda’s child has already been determined, nothing changes. Fred is still the dad, Linda is still the mom, and Jim is now a stepfather. If you ignore the genders of the people involved, the legalities are not difficult to determine.
Non-Monogamy in California
Right now, the parental rights here are easy to determine. It is unlikely that anyone who is not legally married to a child’s parent will have any claim to the child. If someone has several romantic partners, even when those partners are heavily involved with the family, this is going to be the case. Take romance out of it. Imagine a close family friend who is always in the home and has had a direct hand in raising the children for decades. In the event of a divorce or the parents’ deaths, this family friend is not going to have legal grounds to simply take the children as their own. However, parents can name legal guardians in a will, so that is a potential workaround for parenting rights.
California is strict in its polygamy laws (marriage to multiple people), but not in its cohabitation laws. If Sally tries to legally marry two men, she is breaking the law. This could affect the outcome of parenting in the event of Sally’s death. However, if Sally is married to just one man, but her boyfriend lives in the same house as the couple, the state allows this and doesn’t ask questions.
If You Have Questions, Ask a Lawyer
We’ve only scratched the surface of all the possible ways to mix a family in 2021. If you’re unsure of your rights as an unmarried parent, a stepparent, a same-sex parent, a third adult in an open relationship, etc., call a lawyer. No matter how complicated or detailed your situation is, a skilled attorney can help you cut through the red tape, figure out where you stand, and help you and your family plan for the future.
If you have questions or concerns about your rights as a parent, call us today. We can give you a free consultation at (310) 817-6904, or you can contact us online.