For many non-traditional families, building a loving home and creating legal familial relationships can feel like mutually exclusive propositions, especially in jurisdictions that only allow two legal parents or in places where non-nuclear families are stigmatized. Understanding what parental rights exist and who qualifies as a legal parent can be the difference between peace of mind and unnecessary hardship.
This is especially true for non-traditional families, such as non-married parents, same-sex parents, polycules, and multi-parent families. Even in states that allow for more than two parents, the law rarely aligns with the reality of your unique family structure. Knowing what parental rights exist, which rights may be applicable to you, and how to become a legal parent can help you protect your family when the unexpected or the tragic happens.
Why legal clarity matters
Consider a common scenario: you are a committed partner to someone with children. You’re actively involved in the children’s lives, from everything to making meals to handling school drop-offs to taking family vacations. However, if one of the children gets sick and needs to be in the hospital, your status as a “non-legal” parent might mean you have no say in medical decisions and, in some cases, might even be denied visitation. Similarly, if you and the children’s parent end your romantic relationship, you are unlikely to have any legal rights to continue seeing the children. This can feel devastating to both the children and the parent, particularly if they’re not prepared for these scenarios.
Legal clarity also matters for parents conceiving children through assisted reproduction, especially parents who conceive via sperm or egg donation from a friend. The assumption that “everyone is on the same page” isn’t enough in these situations. Legal parentage depends on a complex web of factors, including your state’s laws, the donor’s relationship with the child, whether formal steps were taken to relinquish or establish rights, and whether the donation and conception process happened through a regulated clinical process using a licensed facility or physician. When legal parentage isn’t carefully established, a donor may be able to claim parental rights or may be required to pay child support.
Establishing legal parentage
Parentage laws vary by state, but generally speaking, the default legal parents are the biological mother of the child and the person she is married to. When either or both of those people are not the biological parent of the child, or when the child will have more than two parents, additional legal documents are often needed. These legal documents can establish legal parentage, take away legal parentage, or both.
Although the names of these documents can vary from state to state, the core legal documents involved in establishing parentage often include the following:
- Voluntary Declaration of Parentage (VDOP): A VDOP carries the weight of a court order determining parentage without the need for court proceedings. A person who signs a VDOP becomes a legal parent, with all the rights and responsibilities that entails. This document is generally used when unmarried parents have a child or in specific cases of assisted reproduction, and is often signed in the hospital when the child is born. A VDOP generally cannot be used for surrogacy, to create a three-parent family, or when another legal parent already exists (for example, the biological father of a child generally cannot sign a VDOP if the biological mother is married to another person).
- Voluntary Termination of Parental Rights: This document, which is most frequently used by egg or sperm donors, is a formal agreement that relinquishes all parental rights. This is usually a permanent, irrevocable step; it is extremely difficult, if not impossible, to become a legal parent again after you have voluntarily terminated parental rights.
- Parentage Action: This is a court process used to establish legal parentage. It is often utilized when unmarried parents need to formalize custody, visitation, or support, or when one parent wants to request DNA testing. Bringing a parentage action typically requires legal standing. Typically, only the child, the child’s mother, or a person claiming to be the child’s father can file a parentage action. For example, in California, you can’t file a parentage action to ask a court to declare that you’re the legal parent of your step-child. Some families have been pushing the legal framework by bringing a parentage action to identify a third legal parent. This works best when the third parent is also the bio parent (e.g. parent 1 and parent 2 are married and are the current legal parents, and parent 3 donated the sperm that parent 1 or 2 used to conceive and carry the child).
- Adoption: Adoption is used to create a legal relationship when no biological one exists. Adoptions can be used by the non-biological parent in a same sex couple, by a step-parent or person in a step-parent type relationship, or by a third parent to formalize the already existing parent/child bond. While adoption usually severs prior legal relationships, some states—like California—allow for adoptions that do not sever existing ties, permitting children to have more than two legal parents. If you’re married, whether you and your spouse both need to adopt the child, or whether you can adopt as a sole parent with your spouse’s consent will depend on state law. In some states, adults can adopt each other! Some queer families used this during the AIDS crisis to help take care of and provide for each other. In California, you need to be at least 10 years older than the adult you’re adopting, and you can only adopt one adult, unless the people you’re adopting are siblings.
Putting the child first
In California and many other jurisdictions, the court’s guiding principle is the “best interest of the child.” This means the court is focused on the child’s well-being, not the desires of the adults. The court will need to understand why having more than two parents is truly in the child’s best interest, which often requires parents to show that they are deeply and meaningfully involved in the child’s life. Being a “fun uncle” or “fairy godparent” may not be enough for a court to establish a legal parent/child relationship.
Speak with an attorney
Many areas of family law are fairly straightforward, and can be handled on a DIY basis. Parentage is different. Because the legal landscape is intricate and varies significantly by state, attempting to navigate these documents alone can lead to uncertainty or expensive, heartbreaking complications down the road. If you are currently building or protecting your family, talk to an attorney. Taking the time to get the legal foundation correct will help provide the security your family deserves.
Disclaimer: The content provided here is for general informational purposes only and does not constitute legal advice or create an attorney client relationship. Laws differ from state to state, and each family and household’s legal situation is unique. The topics discussed here may not apply to every situation or family.