As blogged about in Part 1 of my previous blog entitled “More than Two Legal Parents Recognized in California Family Law Courts” new legislation was enacted changing the traditional perception of “family” in the California court system. Until recently, children were presumed to have only one or two parents. Having three parents was not even a consideration. However, under the new law, which went into effect January 1, 2014, Courts are now able to recognize that a child may have more than two legal parents.

The modification of Family Code Section 3040, as discussed in Part 1, gives the Court authority to allocate child custody and visitation among all parents in the case of a child with more than two parents. Such allocation must be based on the best interest of the child, including stability for the child by preserving established emotional bonds and patterns of care that the child has had. While the modification of Family Code Section 3040 focuses on custody and visitation, the addition of Family Code Section 4052.5 sheds light on the Court’s authority to allocate child support when a child has more than two parents.

Family Code Section 4052.5 dives deeper into the realm of recognizing that a child can have more than two legal parents and gives family law courts the authority to divide child support obligations among all parents under certain circumstances. Specifically, Family Code Section 4052.5 provides, in part, the following: “The statewide uniform guideline, as required by federal regulations, shall apply in any case in which a child has more than two parents. The court shall apply the guideline by dividing child support obligations among the parents based on income and amount of time spent with the child by each parent, pursuant to Section 4053.” However, this section further provides that “… the presumption that the guideline amount of support is correct may be rebutted if the court finds that the application of the guideline in that case would be unjust or inappropriate due to special circumstances, pursuant to Section 4057. If the court makes that finding, the court shall divide child support obligations among the parents in a manner that is just and appropriate based on income and amount of time spent with the child by each parent.” [emphasis added]. In other words, the Court may deviate from statewide uniform guideline in the case where a child has more than two parents, when it is just and appropriate to do so.Giving Courts the discretion to allocate child support obligations (or receipt of child support) to more than one parent is significant because it allows for the financial responsibility of a child post-divorce to be distributed among all parents who are involved in raising the child based on each parent’s income and respective time spent with the child. As a result, children are afforded the legal opportunity to be financially supported by all of the adults that play a central role in his or her care.
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If you open up a fresh copy of the 2014 Family Law Code and do some heavy reading, you might notice the modifications to Section 3040, 4057, 7601, and 8617 as well as the addition of Section 4052.5. Back in October 2013 new legislation was signed which now allows California Courts to recognize that children can have more than two legal parents. Although conservative groups viewed this new legislation as an attack on the traditional family structure, the purpose of these new and modified sections is to address changes in family structure that are often present in California. These include the “not so uncommon anymore” situation of a same-sex couple having a child with a biological parent of the opposite sex.

The basis for the legislation apparently arose as a reaction to a 2011 court decision (In re M.C (2011) 195 Cal.App.4th 197) that involved a same-sex couple who ended their relationship for a brief amount of time. One of the women conceived a child with a man (and began raising that child with the man) prior to resuming her relationship with the other woman, whom she ended up marrying shortly thereafter. After a fight put one of the women in the hospital and the other in jail, the child was sent to foster care because although all three adults seemed to meet the criteria to be a legal parent of the child, the biological father did not have parental rights under the law at the time. The court reasoned that it was prohibited from recognizing that more than two people may claim a right to parentage.

In response to the Court’s ruling in In re M.C., the Family Code was modified to give Courts the authority to expand the interpretation of the parent and child relationship. Specifically, Family Code Section 7601 provides that Courts are not precluded from making “a finding that a child has a parent and child relationship with more than two parents.”Allowing the Courts to recognize that a child may have three or more legal parents is quite significant for purposes allocating custody and financial responsibility during and after a dissolution proceeding. With regard to the allocation of custody and visitation, Family Code Section 3040 has also been modified to provide for the following: “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, but not limited to, addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. 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 as provided in Sections 3011 and 3020.” [emphasis added].

As a result of this modification, Courts have the ability to prevent children from being separated from an adult that he or she has always known as a “parent” simply because of a technicality in the law. This modified section allows Courts to place the interest of the children first by giving them the authority to protect children from the emotional and psychological impact of being separated from one of his or her parents. Thus, rather than having to place a child in foster care, the Courts are now able to consider the presence of someone who has played a vital parental role in the child’s life.
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Going through a divorce may be equally difficult for the children of the divorce as it is for the two spouses. Although they may show their grief in different ways, children are typically grieving right alongside their parents.

The news of an impending divorce usually causes children to initially experience feelings of shock. Although they may appear to be functioning okay on the surface, children are likely stunned at first and beginning to cope with their “loss” beneath the surface. As a result of their shock and numbness, a child’s ability to concentrate and think clearly may be impacted. As a parent, you can help your child cope by being patient, giving your child space to think through and process everything, and making yourself available to your child when he/she is ready to talk and have you listen.

A divorce may also cause children to experience feelings of searching or yearning. This typically results in the child “acting out” or possibly withdrawing from others. They may appear to be angry, restless or even bewildered. As a parent, you can help your child cope with these feelings by remaining calm, allowing your child to express his or her feelings and realizing that their feelings may change significantly each day.During a divorce children may also appear very disorganized or disoriented. This is a result of their extreme sadness or depression that they are experiencing as a result of the divorce. This may cause children to lose their appetite, have trouble sleeping, and even lack enthusiasm for the things that they used to enjoy. While a child is experiencing these feelings during a divorce, as a parent you can help by ensuring that your child gets the adequate sleep and nutrition that his or her body requires. It is also important to continually make yourself available and to provide opportunities to spend time together.

Lastly, children typically (and hopefully) go through a stage of acceptance in which they begin to accept the loss and perceive an opportunity for reorganization and resolution. During this stage, children appear to have more energy and seem less sad. As a parent, you can encourage your child to share his or her feelings. However, it is important to realize that your child may slip back into one of the previous stages of grief. Therefore, it is important to remain alert to your child’s mental state and behavior.

Although the parents may be overwhelmed with their inevitable emotions that come along with a divorce, it is important to take a step back and help your children cope with the divorce and corresponding stages of grief that they are experiencing alongside you.
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