Private Law Theory

ABSTRACT
Statutes in a growing number of states authorize a court to recognize more than two legal parents of a child. Commentators tend to treat both multiparent legal recognition and the multiparent families they capture as novel and cutting-edge. Through an empirical study, we show that multiparent recognition and multiparent families are neither novel nor cutting-edge. Multiparent statutes build upon and expand a longstanding legal practice of extending parental rights and responsibilities to more than two people pursuant to functional parent doctrines. Moreover, the families that multiparent statutes accommodate are common and familiar – produced by longstanding practices of divorce and remarriage, nonmarital cohabitation, and caregiving by extended family members.

Our empirical study involves two different datasets. First, we draw on an analysis of all electronically available judicial decisions issued pursuant to multiparent statutes through 2022. This dataset challenges common assumptions about who these multiparent families are and what multiparent recognition accomplishes. Although contemporary discussions of multiparenthood often feature families formed through assisted reproduction and by LGBTQ parents, such families are barely present in this dataset. Instead, the families overwhelmingly feature children conceived by different-sex couples through sexual intercourse. Multiparent cases in this dataset also rarely involve situations in which three individuals have been an active parental presence in the child’s life.

Next, we draw on an analysis of a second dataset consisting of all electronically available judicial decisions applying a functional parent doctrine over four decades. Long before multiparent statutes existed, courts extended parental rights to a third person even when the child had two existing legal parents. Once again, the families accommodated by multiparent recognition pursuant to functional parent doctrines are common and familiar. The children tend to be conceived by different-sex couples through sexual intercourse. Frequently, we see functional parent claims by a biological parent’s different-sex partner or spouse. But more common are claims by relatives, such as grandparents. Again, the children in these cases rarely have three active parents. In fact, the functional parent is typically the child’s primary caregiver.

Our empirical account allows us to intervene in evolving debates about parentage law and multiparent recognition. Commentators worry that multiparent recognition will produce acrimonious custody disputes, complex tri-custody arrangements, and endless conflict as three involved parents struggle to share legal rights and responsibilities. From the vantage point of our study, however, these common concerns with multiparent recognition appear misplaced or overstated. In both datasets, we rarely observe three parents assuming regular parental responsibilities. Legal recognition of a third parent typically protects the child’s relationship with their primary caregiver. In light of our observations, we offer recommendations to lawmakers considering multiparent statutes, cautioning against common doctrinal hurdles that impede, rather than facilitate, multiparent recognition.

NeJaime, Douglas and Joslin, Courtney G, The Legal Recognition of Multiparent Families: Findings from an Empirical Study (May 27, 2026), 38 Journal of the American Academy of Matrimonial Lawyers 457 (2026).