SB 1476 is for rare cases, Leno argues, like that of baby M.C., as she is known in court documents. M.C.'s story starts in June 2008, when "Melissa" had a relationship with a man, "Jesus." According to court documents, when Jesus learned Melissa was pregnant, he brought her to live with his family. She lived with him for months but then returned to her former partner, "Irene."
During the window when same-sex marriage was legal in California, Irene and Melissa wed. In March 2009, Melissa gave birth to M.C. Three or four weeks later, Melissa left with the baby. She contacted Jesus in search of money. He sent her $300.
As she pursued a divorce, Melissa took up with a new boyfriend, who, with Melissa's complicity, stabbed Irene in the neck. While Melissa was in trouble with the law, Irene and Jesus sought custody of the baby.
Because Irene was married to Melissa when M.C. was born, the court found Irene to be the baby's "presumed mother." But because Irene was unemployed, receiving general relief and sleeping on an ex-girlfriend's couch in an apartment that lacked a working refrigerator, social workers did not award her custody. Jesus, engaged and gainfully employed in Oklahoma, seemed the most stable adult in the group, but because the court had not officially ruled any of the three adults as unfit parents, a family court ruled that all three adults were the baby's "presumed parents."
In 2011, an appellate court overturned the ruling on the grounds that the court was not authorized to recognize more than two parents. That's the reason for Leno's bill.
"What we do know as a consequence of the case was that the biological father was unable to cement his claim of parentage," Ed Howard, who is the senior counsel for the Children's Advocacy Institute at the University of San Diego School of Law and who helped draft the bill, told me.
Shannon Minter, who is the legal director for the National Center for Lesbian Rights and who also worked on the bill, bristles at the suggestion that the bill is designed to rewrite the law to accommodate same-sex couples. He says the measure should help two kinds of families -- heterosexual families with both a stepfather and an active biological father and same-sex couples such as "a lesbian couple raising a child with a gay man or a man where they all intend and want for all three to be parents." The children in these families need legal protection.
Diane Wasznicky, president of the Association of Certified Family Law Specialists, agrees that there should be a law that sets the parameters for these new families. But she thinks the bill is "poorly drafted in terms of its unintended consequences."
I believe that lawmakers should be very humble when they tinker with family law. Yet Leno's bill sailed through committees and passed the California Senate floor with less debate and scrutiny than Sacramento dedicates to a measure on mortgage foreclosure.
"I don't think it will ever be used when a child has too many parents," Leno told me. "It will be used when a child has too few."
Really? That's what they always say. A New York Times story on Leno's bill featured a gay couple and lesbian couple who share custody of two little girls as possible beneficiaries. I hope both couples stay together, because if they split, the girls could be divided painfully, not two ways but three ways or four.
In this brave new world of surrogate carriers and sperm donations, is it in the interest of those parents who cannot have children on their own to raise the two-parent limit? Is it in children's interest to be torn four ways? Is there a pressing need for this law?
I wondered what happened to little M.C., so I tracked down her legal representative, Christopher Blake, in San Diego. He told me, "She's doing fine." M.C. is living with Jesus, his new wife and their child in Oklahoma. Melissa, now a parolee at large, lost her parental standing, he said, whereas Irene has visitation rights.
"This bill has got its heart in the right place," Blake said, "whether it's got its brain in the right place" is a different question.
In their rush to rewrite family law, Leno, Howard and Minter were happy to use M.C. and Jesus as poster victims, but they had not bothered to follow the baby. They waved the image of a toddler languishing in foster care while a caring dad was left out in the cold -- when in the real world, the court had taken care of the problem in the best interest of the child.
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