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Evolution in the Law of Child Custody: Part One

The law and family law in particular has a tendency of moving and evolving at glacial pace. But, much like a glacier’s movement has major consequences to the landscape around it; movements in the law can have tremendously important effects on everything around it. There is now a movement in the law to broaden the concept of parenting, and who can be considered a parent.

Recently, Drake Bennet wrote an interesting article in the Boston Globe on the notion of child custody in non-traditional families. With 21st century technology in assisted reproduction and increased acceptance of same-sex couples, many families do not resemble the family that the legal system has in mind. Today, many children are brought up with parent-like relationships with three or more adults.

Our legal system recognizes that a child can be in the custody of one or two people, but no more than that. This presumption exists because a child cannot have more than two biological parents. However, families can often be structured differently, with more than two adults having a parent-like relationship with a child. The law is often slow to adjust to changes in society, and new family arrangements can often seem out of step with the way family law judges deal with child custody issues. Changes in the way the law deals with families and children may come slowly, but such changes have happened in the past and have had dramatic consequences.

In the next part of this article, we will go into more detail about how the law of parentage has evolved in the past and where it may be heading.

Source: Boston Globe (Boston.com): Johnny has two mommies – and four dads; Drake Bennett, 10/24/2010.

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Evolution in the Law of Child Custody: Part Two

Some of biggest changes in family law over the last 200 years have dealt with children born to unmarried people. American family law is derived from English common law. According to Nancy Poikoff, a family-law professor at American University, children born out of wedlock before the 19th century had no parents under the law. Children born out of wedlock had very little rights and parents of such children owed very little responsibility to them. In the 19th century, the law changed and mothers were automatically assigned parentage of children. If she were unmarried, she would be considered the sole parent. If she were married, her husband would also be considered the legal father (whether he was the biological father or not.)

In the 20th century, we saw the distinction between legitimate and illegitimate children eroded. In the 1960s and 1970s, the United State Supreme Court struck down state laws that penalized children born out of wedlock.

We are now seeing some movement in the law towards recognizing more than two adults as parents of a child. We saw two such cases in 2007. In Canada, a country that also has its laws derived from English common law, the Ontario Court of Appeals divided parental rights between a sperm donor and both members of a lesbian couple. In Pennsylvania, a trial court similarly awarded custody to a sperm donor and a both members of a same sex couple.

Right now, we are on the front end of a trend in family law. Change is happening gradually, but could have major effects on the way courts deal with parental rights. Family relationships can be complex and the breakup of a family can be a traumatic experience. Parental rights and child custody issues tend to be complex, and the courts are still coming to grips as to how to deal with non-traditional families. If you have questions regarding child custody and parents’ rights issues, an experienced family law attorney can help you find answers.

Source: Boston Globe (Boston.com): Johnny has two mommies – and four dads; Drake Bennett, 10/24/2010.

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