Can’t We Just Agree? — A New York Court Holds That A Child Can Have Three Legal Parents

By Thomas E. Joaquin, Esq.

One plus one plus one is three.  We can all agree on the math, but when it comes to parents, the law usually stops counting at two.  But a New York court recently decided, in Dawn M v. Michael M., that, when a child is raised by three parents, it can be in the best interest of a child for the law to affirm the parental rights of each of the three of them.

The case tells a story that any child could understand: J.M. is a ten year-old boy who loves his parents. Like any other child, losing a parent would be devastating for J.M. But because J.M. has three parents, it seemed a forgone conclusion that one of his parents would be taken away by a legal system that insisted he could only have two.  Fortunately for J.M., it didn’t  work out that way.

Judge H. Patrick Leis III decided to award joint legal custody — what he called tri-custody — to three parents, in Dawn M v. Michael M.   Michael M and Dawn M. were a married couple who lived with Audria G. in what what the three considered to be a family. The three decided to raise a child together, and because Dawn had been unable to carry a pregnancy to term, they all agreed that Michael and Audria would serve as biological parents. When Michael and Dawn separated, Dawn and Audria moved together, raising J.M. as co-mothers, while Michael maintained a close relationship with his son. Under prior NY law, Michael and Audria, the child’s biological parents, were his only legal parents. After Michael and Audria agreed to joint custody, Dawn asked the court to allow her to share joint custody with Michael and Audra.

Judge Leis decided that awarding tri-custody was “the logical evolution of the Court of Appeals’ decision in Brooke S.B. v Elizabeth A.C.C.,”, (a case holding, for the first time, that a de-facto parent could be a legal parent, and NY’s Marriage Equality Act.  Applying Brooke, Judge Leis found that the parties agreed to raise a child together, prior to the child’s conception; that they continued to raise the child as co-parents; and that acknowledging each of the three as legal parents was in the child’s best interest.

This decision, while legally remarkable, accords with common sense – why should the state take away a child’s parent, simply because there are more than two?  Which brings us to ask the next question: why stop at three?

Michael M. plans on appealing the decision.

TEJ

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