Sep 8, 2017

A new development in family law this last year is the introduction of Family Code section 3040, signed into law by SB 274. This new law states that a child in California can legally have three parents. Child custody cases may now have to include orders for three parents making the process of defining custody even more complicated.

The critical part of the three-parent legislation granting rights to more than one parent is Family Code section 3040 (d), which states:

In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds.

For example, three parents can have joint legal custody of the child.  This would mean that all three parents would have to meet and come to a decision regarding a child’s medical treatment, schooling, religious activities, and other important decisions for a child.  However, Family Code section 3040(d) also states: “The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child . . .” So, courts may find refuge in allowing only one or two parents in this circumstance to have legal custody, which in high conflict situations may help ease the tension and inability to reach decisions often found in divorce cases and other family law child custody disputes.

Additionally, if all three parents do not live together, this could throw out the old notion of fifty-fifty custody, now changed to one-third custody between all three parents.

It will be interesting to see how this law develops in California and if it picks up steam nationwide as states try to cope with the issues of blended families.  Where I see this law emerging the most in my practice is in child custody litigation where a step-parent or grandparent has played a significant role in a child’s life, assuming the role of a parent.  In such a case, I believe that a step-parent or grandparent could petition the court for parent rights if they have a break with the biological parents.  Based on such an occurrence, the court will have to first make a finding that the non-biological party is a parent, and then to make a decision on whether or not the child will have legal custody and physical custody shared between three parents.  Based on my experience, I believe that the court will be guided by the “best interest of the child” standard and rule in favor of the custody situation that will best promote the health, safety, and welfare of a child.

Another scenario would allow two parents to adopt a child, but permit the biological parents to still have parental rights to a child.  Such an agreement would best be served if all four parents could agree to a stipulated custody agreement.

The combinations on this parental arrangement have many different possibilities.  I think that the court will be guided by the words in the statute that focus on the court determining what custody arrangement will be in the best interests of the child with a focus on “preserving established patterns of care and emotional bonds.”

These would be very interesting cases to litigate in court, as I expect that the court will need expert testimony from child custody psychologists and other child custody recommending professionals in order to properly make the decision in the child’s best interest.  At Provinziano and Associates, we believe in aggressively advocating the case for our clients and firmly believe that a child deserves healthy and stable relationships with their families.


© Alphonse F. Provinziano, Esq.