On October 4, 2013, Governor Brown signed a historic bill into law that grants California’s family and juvenile courts the discretion to recognize that a child has more than two parents under certain limited circumstances.  The bill explicitly was intended to overrule In re M.C. (2011) 195 Cal.App.4th 197, a case  where the juvenile court found that a child’s interests would best be served by recognizing three parents, and entered orders consistent with this finding, but was reversed on appeal on the basis that allowing recognition of more than two parents was not authorized under California law.  The legislative findings in Section 1 of the bill include the following language: “The purpose of this bill is to abrogate In re M.C. (2011) 195 Cal.App.4th 197, insofar as it held that where there are more than two people who have a claim to parentage under the Uniform Parentage Act, courts are prohibited from recognizing more than two of these people as the parents of a child, regardless of the circumstances.”  Paragraph (d) of the legislative findings states that: “It is the intent of the Legislature that this bill will only apply in  the rare case where a child truly has more than two parents, and a finding that a child has more than two parents is necessary to protect the child from the detriment of being separated from one of his or her parents.”

The law, 2013 Senate Bill 274, provides that where more than two people qualify as parents under California’s Family Code, a court will not be required to eliminate potential parents to bring the number down to two.  In its effort to broaden the courts’ discretion in this regard, the bill amends Family Code section 7612 to provide that: “In an appropriate action, a court may find that more than two persons with a claim to parentage under this division are parents if the court finds that recognizing only two parents would be detrimental to the child.  In determining detriment to the child, the court shall consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.”  (Family Code § 7612, subd. (c), emphasis added.)

The bill also amends Family Code section 8617, relating to adoption, to read: “(a) Except as provided in subdivision (b), the existing parent or parents of an adopted child are, from the time of the adoption, relieved of all parental duties towards, and all responsibility for, the adopted child, and have no right over the child. (b) The termination of the parental duties and responsibilities of the existing parent or parents under subdivision (a) may be waived if both the existing parent or parents and the prospective adoptive parent or parents sign a waiver at any time prior to the finalization of the adoption.  The waiver shall be filed with the court.”

This article will explore the legal and psychological issues raised by application of SB 274 and, in particular, by the bill’s requirement that a court find detriment prior to determining that a child has more than two legal parents.

The Legal Perspective:

SB 274 is codified primarily in Family Code section 7612.  This section provides, in brief, that where there are more than two people who qualify as presumed parents based on application of the marital presumptions, the receiving and holding out presumption, and/or proper execution of a Voluntary Declaration of Paternity, the courts have the discretion to find that the child has more than two legal parents if “culling the herd” down to two parents would be detrimental to the child.  The bill is even more specific: family and juvenile courts are encouraged to focus on the particular detriment that would be created by “removing the child from a stable placement with a parent who has fulfilled the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.”  (Family Code § 7612, subd. (c), emphasis added.)

From a legal perspective, attorneys handling multiple parent cases need to engage in a slow and careful assessment of the case.  This assessment includes: (1) Questions of jurisdiction: have there been prior custody adjudications in other states that may bar California courts from entertaining issues regarding custody of this child? (2) Questions of standing: does the person asserting his or her status as a third parent have standing to be heard on the matter? (3) Questions of statutory basis: are there more than two people who qualify as presumed parents under our Uniform Parentage Act?  If so, what is the statutory basis for each presumed parent’s claim?  Family Code section 7612 generally does not come into play unless there are more than two people with a statutory basis for claiming presumed parent status. (4) If the person who is trying to assert legal parentage is the biological father, but he does not meet the statutory definition of a presumed parent, is he a Kelsey S. father? (5) What is the child’s status quo in terms of parenting time?  Is recognition of more than two parents required to preserve that status quo?  All of these legal considerations should be taken into account as part of the analysis of whether or not a finding of more than two parents is appropriate.

The Legislature made clear, in adopting SB 274, that it was intended to apply only in rare cases.  These cases primarily will arise from two types of situations: first, where a child has been raised by more than two parents for many years, relying on all of them for physical care and comfort and for psychological, emotional and financial support, such that losing any one of them would potentially pose a significant detriment; or second, where someone whose legal parentage already has been established has failed to fulfill a meaningful parenting role for the child, leaving that to a third party whose loss would pose a significant detriment to the child.  In this article, we will explore both of these hypothetical situations and suggest some legal and psychological strategies for approaching the cases.

The Psychological Perspective:

From a psychological point of view, the central question is about the child’s attachment system.  This is a term with specific meaning, perhaps beyond the ordinary use of the word “attachment.”  In child development, attachment refers to the biologically and neurologically based development of a strong to the relationship with one or more caregivers that provide sensitive and attuned care, security from harm and encouragement to safely explore the environment.  Children turn to their attachment figures when they are frightened, sick, hurt or tired and current research suggests that the early attachment experiences can have a lifelong impact.  These relationships help children develop emotional regulation, an understanding of reciprocal human relationships, and lessened risk of anxiety and depression as well as behavior disorders.

Separation from a primary attachment figure is associated with immediate intense distress, as well as possible long-­lasting negative effects such as the inability to regulate emotional reactions, poor interpersonal relationships, and increased risks of a wide variety of poor outcomes, including lower school achievement and greater risks of externalizing behavior problems (aggression, substance abuse, delinquent behavior).

The establishment of an attachment to a caregiver relies on the child’s experience of sensitive and attuned care provided by that person.  It is possible, and perhaps common, for a child to develop multiple attachments to multiple caregivers.


Ann and Beth, a lesbian couple who have been together for many years, decide to have a child.  They ask one of Beth’s co-­workers, Chad, if he would be willing to donate sperm to help them become parents.  He agrees, but only on condition that he be actively involved in parenting any resulting child.  The three meet and talk extensively about their visions of what this family might look like, and ultimately decide to go forward.  They engage in a home insemination, with no doctor involved, and nine months later Ann gives birth to baby Daniel.  Ann and Beth share primary parenting responsibilities for Daniel, but Chad visits him at least once per week, and by the time Daniel is 6 months old they’ve added overnights and at least one full weekend per month with Chad.  Daniel has a warm relationship with all three sets of grandparents, knows each parent’s siblings as aunts and uncles, etc.  While the three co-­parent effectively, there is an undercurrent of friction between Beth and Chad because each feels vulnerable about his/her legal situations vis-­a-­vis Daniel.  They seek advice on how to address this.

Legal & Psychological Analysis:

Ann, Beth and Chad are the family that many people were thinking of when SB 274 passed.  They all are on the same page about co-parenting Daniel, and have created a coherent family system where he understands that he has three parents.  From a legal perspective, both Beth and Chad qualify as presumed parents, in that each of them has received Daniel into his/her home and openly held Daniel out as his/her child. (If Ann and Beth are married, Beth also may qualify as a presumed parent based on the 7611(a) marital presumption.)  The benefit of a 3­parent approach in this case is that it will preserve the status quo for Daniel, turning his understanding of who his parents are into a legal reality, and will avoid pitting Beth against Chad as would almost certainly happen if a court ever were forced to choose between the two.  If all three parents agree that creating a legal 3-­parent family is what is best for Daniel, it can be accomplished by a “third parent” limited consent adoption under Family Code section 8617.


Erica and Francisco are high school sweethearts.  In her senior year, Erica unintentionally becomes pregnant.  She decides to have the baby, but Francisco has other plans and tells her if she goes through with the pregnancy she is on her own.  Although she lets him know when she goes into labor, he is not present when baby Gina is born and only stops by a couple of times to see the baby.  Erica lives with her parents and works minimum wage jobs, but requires public assistance in the form of MediCal and food stamps.  Because she is on public assistance, she is required to identify the child’s father and the Department of Child Support Services (“DCSS”) brings a paternity action against Francisco.  He fails to respond to the court papers, his paternity is legally established in a default action, and his wages are garnished to assist in supporting Gina.  He only sees her occasionally, usually when she is out with Erica and they happen to run into him.

When Gina is two years old, Erica meets and falls in love with Javier.  After a few months of dating, Erica and Gina move in with Javier and the three live together as a family for the next 10 years.  Javier embraces his role as Gina’s dad, and the two are very close.  However, as she approaches adolescence, Gina also  becomes curious about Francisco and troubled by his disinterest in her.

When  Gina is 12, Erica decides to leave Javier.  They try to work out a custody arrangement for Gina, but Erica takes the position that Javier only should have visitation with Gina at Erica’s discretion since he isn’t really Gina’s dad.  Javier wants a shared parenting arrangement that allows him to continue fully participating in Gina’s life, so he seeks legal advice.

Legal & Psychological Analysis:

This is probably the most common fact pattern where SB 274 is likely to come into play.  Having lived with Gina and acted as her  father for a decade, and assuming that Javier has openly held himself out to the world as Gina’s dad, he will qualify as a  presumed father under Family Code section 7611(d) as interpreted by our Supreme Court in In re Nicholas H. (2002) 28 Cal.4th 56.  However, paternity of Gina previously was established in the default action brought by DCSS,so the legal position of “father” is taken.  Prior to enactment of SB 274, Javier would have had no option for establishing a legal parent-­child relationship with Gina unless he could get Francisco’s parental rights terminated; and his only option for doing so would have been to bring an abandonment action against Francisco under Family Code section 7822, which may have been precluded by Francisco’s payment of child support via his relationship with Gina as the only actual functioning father she has known would have been extremely vulnerable to disruption and Erica’s whim.

For Gina, who already is wondering about her biological father’s lack of interest in her, an action to declare him as having abandoned her would be likely to solidify her feeling that she was nothing to him (and perhaps by extension to other men).  As a young adolescent trying to understand her place in the world, such a determination would be quite likely to be detrimental to her development.  At the same time, Gina’s relationship with the only father she has ever known, Javier, IS a real attachment relationship for her, whatever the lack of biological connection.  Losing that relationship will be detrimental to her in that it would represent a loss of a significant attachment relationship and, in addition to the direct effect of the loss, it would probably add to her concerns about whether father figures (or any men in the future) hold her as valuable.

Javier should be encouraged to file a Petition to Establish Parental Relationship and an accompanying Request for Orders requesting joint custody and a reasonable parenting plan.  As a “receiving and holding out” parent, he has standing under Family Code section 7630, subdivision (b).  He will need to serve both Erica and Francisco,and ideally the three of them will participate in mediation and reach some agreements about how to proceed.  If no agreements are reached, a court will have discretion –under Family Code 7612, subdivision (d) – to determine that the default judgment establishing Francisco’s paternity does not rebut Javier’s 7611(d) parentage presumption if it finds that rebuttal would be detrimental to Gina as per Family Code section 7612, subdivision (c).

In order to succeed in his claim, from an evidentiary perspective, Javier will have to convince a court that rebutting his presumption of parentage would be detrimental to Gina.  One way to demonstrate that he has a genuine and important attachment relationship with Gina is by means of a bonding study.  This is a process through which a mental health professional with expertise in observing and analyzing attachment would interview Gina and observe her with Javier.  This type of study is not as extensive as a comprehensive child custody evaluation under Evidence Code section 730, but is limited to the single issue of whether Gina has developed an attachment to Javier, the disruption of which would represent a significant loss to her, and thus be a detriment.  A bonding study will provide important information to all three parents and, if the case goes to litigation, will provide Javier with admissible evidence he can use to establish that rebuttal of his parentage presumption would be detrimental to Gina.


Keisha and Lamar are a married couple.  Lamar travels a lot for work, spending approximately two weeks out of every month on the road.  Nevertheless, they have a good marriage and enjoy each other’s company, and Lamar is overjoyed when he finds out that Keisha is pregnant.  He attends as many prenatal appointments as possible and is present when their daughter Nayla is born.  Although he continues to travel for work, he spends as much time as possible with Nayla when he is home, and is a very good dad.  Two years after Nayla’s birth, Keisha finds out she is pregnant again.  At this point, she and Lamar agree that Lamar needs to stop traveling, and by the time Omar is born, Lamar has found a new position, which allows him to be home full time.  Approximately 6 months after Omar’s birth, Keisha admits to Lamar that during the years he was traveling so much she had an affair with a co-­worker named Maurice.  She tells Lamar that Maurice is Nayla’s biological father, which has been confirmed by a home DNA test she and Maurice did in secret shortly after Nayla was born, and that he may be Omar’s biological father as well.  When Lamar was traveling, Maurice would visit Keisha and Nayla in their home from time to  time, and occasionally he would stay overnight.  He is willing to respect  Keisha’s and Lamar’s marriage, but he wants to have a continued relationship with Nayla and is threatening to bring a court action if they won’t agree to allow him regular contact.  Lamar is understandably upset, and he and Keisha do a DNA test to check the paternity of Omar.  Lamar is not Omar’s father.  They go to counseling, and ultimately decide to stay together and recommit to their marriage, but on condition that Maurice has no further contact with Keisha or the children.  Upon being informed of their decision, Maurice files a Petition to Establish Parental Relationship and a Request for Orders requesting DNA testing, joint custody of and visitation with both kids (assuming the DNA test verifies that he is a parent).

Legal & Psychological Analysis:

This is the fact pattern that creates the greatest risk of misapplication of SB 274.  From a legal perspective, both Nayla and Omar were born into Lamar’s and Keisha’s marriage, and both are presumptively Lamar’s legal children under California’s marital presumptions (Family Code sections 7540 and/or 7611(a)).  The family is living together as an intact, nuclear family, and Lamar certainly never agreed to Maurice parenting the children.  Assuming the kids are being raised to believe they have one mom and one dad, Keisha and Lamar, recognizing Maurice’s legal paternity would not preserve the status quo but would, instead, disrupt it.  And yet, Maurice’s desire to have a relationship with his biological children is likely both genuine and heartfelt.  It therefore is tempting to suggest that all three parents should be recognized.

From a strictly legal perspective, Maurice may well lack standing to bring an action regarding paternity of the children.  Only a presumed parent has standing to challenge the marital presumption, and it is unlikely Maurice qualifies if he only has visited with the children “from time to time,” and always in their mother’s home.  His action likely will be met by a Motion to Quash, which may well be granted; and even if the matter is not resolved by a Motion to Quash, he would be hard pressed to convince a court (a) that he is a presumed parent (or even a Kelsey S. father, given his failure to act promptly to legally establish his paternity once the home DNA test confirmed that he was Nayla’s biological father), and (b) that failing to recognize him as a legal parent would cause the kind of detriment that SB 274 was designed to guard against.

From a psychological perspective, Omar does not know Maurice at all, and Nayla is unlikely to have developed an attachment relationship with Maurice.  She saw him only intermittently and irregularly and it is unlikely that he was providing close, regular, attuned care for her.  Although Lamar was gone for almost half the time, he provided close and attentive care for his daughter when he was present.  Attachment depends to some extent on a minimum amount of time in which a parent cares for a child across a variety of domains: feeding, dressing, playing, soothing, putting to bed, getting up.  These are activities that Lamar has engaged in with Nayla, while Maurice has not.  For Nayla, the introduction of Maurice as a parent is likely to be very confusing and disruptive of the parental relationships she understands in her family.  Her emotional attachments to Lamar and Keisha are likely to be disrupted by efforts to add an additional parent.  Since the central issue for the child is the secure knowledge that her attachment figures are steady, dependable and there for her, such disruption is likely to be detrimental to Nayla.

Take-­Away Advice for Legal Professionals:

Attorneys being consulted about cases involving more than two potential parents must be particularly attuned to the attachment (and other mental health) aspects of the case.  Unless the case can be resolved strictly on legal grounds (e.g. by granting of a motion to quash based on lack of standing), resolution – whether through litigation or through some method of ADR – will require a close analysis of the facts.  The detriment requirement generally means that the child’s existing relationships with the various adults will need to be carefully assessed.  It therefore is strongly advised that any attorney handling one of these cases work closely with a mental health professional in developing a viable theory of the case and in making sure the attorney will have the expert testimony needed to prove it.

Take-­Away Advice for Mental Health Professionals:

If a mental health professional is contacted by a parent in a potential third (or fourth) parent situation, it is important to promptly provide a referral to a family law attorney with expertise in these cases rather than providing advice about the legal rights of each of the possible parents.  The mental health professional should talk with the parents about the history of the child-­parent relationships and the children’s attachments.  He or she should help the parents think through the effects on the child of terminating the third parent relationship or the effects on the child of continuing it.  The mental health professional also should be prepared to provide information to the parents and to the attorneys on the research regarding the importance of continuity of attachment relationships.

A further area of work with parents who are concerned about the several relationships in their families is to help them look at their own feelings and motivations in making the decisions they are contemplating.  Not all parents are willing to examine their own motives, but some are able to recognize when their own anger, resentment and fear dominate their decision-­making and to stop to think about the needs of their child.  Helping parents recognize their children’s experience of who their parents are – and helping the parents focus on maintaining stability for their children even while coming to terms with the instability of their own adult relationships – is one of the most important roles for a mental health professional in these complex multi-­parent cases.