Three’s Company? How American Law Can Recognize a Third Social Parent in Same-Sex Headed Families
Three’s Company? How American Law Can Recognize a Third Social Parent in Same-Sex Headed Families
Laura Nicole Althouse, 19 Hastings Women’s L.J. 171 (2008)
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This Article proposes a theoretical framework for granting legal recognition to three parents in the context of families headed by same-sex couples. The framework is limited to a situation where the parents want a family structure consisting of three parents, with two parents performing the full panoply of parenting duties and a third parent providing limited social parenting. While the Canadian family in A.A. v. B.B. wanted all three parents to have full legal parenting rights, this Article focuses on families with two parents with full parental rights and a third parent with limited social rights, because this particular structure is most prevalent among American same-sex headed families in which three people are identified as parents. Social parenthood, as used in this Article, refers to the concept of defining parenthood on the basis of providing physical, psychological, intellectual, and spiritual care to children. Traditionally, social parenthood has been coupled with legal parenthood and its affiliated economic support obligation; however, this Article explores Professor Nancy Dowd’s argument that, when appropriate, social parenting rights should be segregated from economic support duties. I have chosen to focus on social parenthood for two reasons. First, social parenting is increasingly recognized by child development experts, scholars, and judges as a crucial component of children’s well-being. Second, it is reasonable to believe that for the children of same-sex parents, such social recognition and protection may be of even greater benefit and importance, due to our society’s ongoing moral debate regarding their parents’ lifestyle and parental fitness. Finding ways to legally validate social parenting serves a critical need of children of same-sex couples.