Melanie L. Jacobs: "Why Just Two? Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents"

Melanie L. Jacobs (Michigan State) has posted "Why Just Two? Disaggregating Traditional Parental Rights and Responsibilities to Recognize Multiple Parents" on SSRN. Here is the abstract:

The traditional nuclear family of one mother / one father is in decline and other family forms are emerging in increasing numbers, such as blended families with stepparents, and same-sex parents. Many children are being raised by and/or have as a significant presence in their lives more than two parents. From a legal standpoint, recognition as “parent” entitles the individual to pursue all the benefits of parentage and may require the individual to assume all of the duties. Even though there may be a person who functions as a parent in a de facto capacity, s/he may not have legal protection because of the reluctance to grant legal parental status to more then two individuals. One major difficulty of recognizing multiple parents is the long entrenched legal vision of a nuclear family with two parents (based, in part, on parental autonomy). Legal parents enjoy considerable protection from state and third party interference.

In addition to constitutional concerns, the logistics of recognizing multiple parents presents a significant legal challenge. It is difficult enough to have two parents share responsibility for a child, especially post dissolution; how can more than two parties share parental responsibilities without too much distress? Recognizing multiple parenthood will likely require greater court intervention - not only at outset, to legitimize multiple parental relationships, but also to manage the relationships.

Critical to the recognition of multiple parents is the disaggregation of parental rights and responsibilities. At present, the establishment of legal parentage entails all of the responsibilities of parentage, such as financial and medical support, and all of the benefits, such as the right to custody and visitation. By delinking and disaggregating all of these rights and responsibilities, more than two individuals may hold the designation of “legal parent” yet each can make different contributions. I suggest that disaggregating parentage should allow for recognition of all the relevant adults in a child's life, yet not grant equal parental rights to all individuals, unless specifically agreed upon. A scheme of relative rights, dependent upon the adult's relationship with, and contributions to, the child should enable multiple parentage to work.