Advances is techniques to combat infertility can often result in non-traditional familial relationships. Often, the law struggles to keep up with the changes. To that end, a New York judge recently handed down a nonconventional custody order to fit the unique situation of one particular family. Judge gives custody of child to 1 dad and 2 moms, by Sarah Jorgensen and Ellie Kaufman, cnn.com, March 14, 2017. In that case, the child at issue was the biological child of a man and his neighbor, with whom the man and his wife had an intimate relationship. The man and his wife struggled with infertility, including suffering a miscarriage, prior to beginning a relationship with their neighbor. After the neighbor became pregnant, she moved in with the married couple and the three planned to raise the child together. However, about a year after the child was born, the wife and the neighbor left the joint home and moved in together, taking the child with them. Subsequently, the husband and wife filed for divorce.
Now, here is where it gets tricky. The wife, who was not a biological parent, but who had helped raise the child as his "parent," wanted legal parental rights. At the same time, she did not want to take parental rights away from either of the biological parents, which put the court in the position of determining whether all three could have parental rights. The neighbor was agreeable to a tri-custody arrangement, but the father was not.
In making his determination, the Judge deferred to a standard similar to Georgia's "best interests of the child" standard. He held that a tri-custody arrangement "was critical to the child's well being, because the child thinks of both Audria and Dawn as his mothers." The Judge further held that "[t]o order anything other than joint custody could potentially facilitate the plaintiff's removal from (the boy's) life and that would have a devastating consequence to this child."
Here, the Judge used a long standing, traditional custody standard to order a non-traditional custody arrangement. Thus, the law does not necessarily need to be changed in order to include nonconventional familial situations. However, the courts and Judges may need to be open to using the existing laws to protect these non-traditional families.