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Multi-Parent Custody

By Jessica Feinberg. Full Text.

In recent years, a number of jurisdictions have enacted laws recognizing that a child may have more than two legal parents (multi-parentage). Recognition of multi-parentage represents a significant change to the legal framework governing parentage— for most of U.S. history, it was well established that a child could have a maximum of two legal parents. While commentators undoubtedly will continue to debate the wisdom of multi-parentage recognition, it is clear both that multi-parentage has arrived and that its arrival raises many novel and important questions across a variety of areas of the law. Proponents and opponents of multi-parentage agree that child custody represents one of the core areas in which multi-parentage recognition will raise complicated questions that warrant careful consideration. It is inevitable that, just as child custody disputes arise in two-parent families, such disputes also will occur in multi-parent families. As a result, legislatures and courts soon will face the task of deciding how to approach custody disputes involving children who have more than two legal parents.

This Article examines a number of the core initial questions that multi-parentage recognition will raise in the child custody context. These questions include: (1) whether parents who share an intact relationship and are involved in a dispute with another parent should be considered a single entity or separate entities for purposes of the custody determination; (2) whether legal standards employing presumptions in favor of joint custody, which have become increasingly popular in the two-parent custody context, should extend to multi-parent custody disputes; and (3) to what degree the law should encourage settlement and defer to agreements reached by the parties in multi-parent custody disputes. The Article concludes by setting forth detailed proposals regarding how lawmakers and courts should resolve these essential questions.