Will “Tri-Custody” Become a Family Law Norm?

divorce involving small children

Recently, a New York court made headlines by awarding custody of a child to the father, his ex-wife and another woman, the biological mother of the child. The facts require a bit of explaining.

Michael and Dawn married in 1994. Dawn could not bear children, so they agreed to a rather unique arrangement – an open marriage involving their neighbor Audria. It seems that Michael and Audria conceived a child, and the parties agreed to raise that child collectively. Later, Audria and Dawn began an intimate relationship, and as a result, Dawn and Michael began divorce proceedings. At the same time, Michael filed a paternity suit against Audria for custody of the child. Because Dawn had no biological relation to the child and the parties never adopted the child during the marriage, Dawn had no legal rights to the child. But she did have a maternal relationship with the child. So Dawn also sought custodial rights.

The judge in the case, after criticizing the parties for their unusual behavior, had to decide what would be in the best interests of the child. Recognizing that all three had been raising the child, and that Dawn had a maternal role in the child’s life, the judge decided to give custodial rights to all three parties.

In some ways, this case is not too far astray from cases where a third party may seek visitation rights in a particular case because of the particular facts of the relationship – for example, a grandparent who helped raise a child for a significant period of time. But this case went further and granted all three actual custodial rights.

In other ways, this case raises serious concerns about surrogacy arrangements. Many married couples engage a surrogate to carry a child, and sometimes the surrogate also donates her egg. In this sense, such an arrangement has the same facts (without the relationship drama) of the New York case. What if the surrogate is a friend and has some contact with the child? What if the parties wanted to keep the surrogate in the mix but later felt that having two moms created too much of a problem? Does the New York case give a precedent for a surrogate to have custody rights?

What we have now is a legislative gap in our custody statutes, and states need to be more proactive in responding to surrogacy and open-marriage relationships for the good of the child. The surrogacy issue can be dealt with more easily because of contract law that would require a surrogate to give up all rights or have specific rights as agreed in advance. But three party relationships create new territory even though the prevalence of such relationships has been growing for several decades. States need to amend statutes to allow for a means of awarding and evaluating custody when it would be in the best interest of the child. Just as paternity cases “legitimated” out-of-wedlock relationships, the three party relationship may be the next frontier.

If you have questions about third party custody, contact us – we can help.