by Sharon Barrett
September 24, 2012
In my previous post, I asked this question:
Cohabitation and divorce both have significant negative effects on child well-being. Since marital instability is a commonly reported cause of divorce, should we place even more children at risk by legally redefining marriage to include same-sex partnerships?
The bisexual element in most same-sex households compounds the natural mutability of many same-sex relationships. Such instability is a strong predictor of divorce. Additional unforeseen consequences, however, arise from the unique circumstances that surround the child in a same-sex household.
A child enters a same-sex household via adoption, artificial reproductive technology, or one partners previous heterosexual relationship. When the relationship breaks up, who has a claim to the child: biological parent, donor or surrogate, or adoptive same-sex partner? What about the same-sex partner who never adopted the child because the other biological parent would not release his or her rights or the partners new boyfriend or girlfriend, who is helping raise the child?
While these situations may sound exaggerated or hypothetical, they could become legal reality in Californiaunder the triple-parent bill SB 1476, currently awaiting the stroke of the governors pen. In her article, Why Californias Three-Parent Law Was Inevitable, Dr. Jennifer Roback Morse documents the 2011 case that motivated state senator Mark Leno to propose the bill.
Melissa, the mother in In re M.C., was bisexual, like most of the same-sex parents surveyed in 2012s New Family Structures study: in 2008, after becoming pregnant by a man (Jose), she married a woman (Irene) and subsequently gave birth to a daughter (M.C.). When Melissa was sent to prison and Irene hospitalized, Jose requested custody.
Custody was denied, however, because under Californias Uniform Parentage Act the man to whom a mother is married when she gives birth is the childs presumed father. Irene, though not a man, was counted as M.C.s presumed mother despite the fact that she had lived with M.C.s mother for barely a month and had not adopted M.C. Rather than give the child to her father, the court placed M.C. in state custody so that she could be awarded to Irene at a later date.
Even without the problems of cohabitation and divorce, a child being raised by a same-sex couple inevitably has more than two parental entities involved in his or her life. Either they or the courts will determine how they may share access to that child. As Dr. Morse observes,
We cannot count on private agreements among the parties to solve all problems and manage all disputes. A subset of these cases is going to end up being settled by the family courts. Therefore, not only does same-sex parenting create an impetus to triple-parenting, it creates an impetus for state involvement in the ongoing management of these complex relationships.
The redefinition of marriage and the redefinition of parenthood that must accompany it creates a legal quagmire. As more disputes like In re M.C. enter the courts, more children are likely to be divorced from their parents and from the natural definition of family.