The Brandywine Review

Commentary on American law

Family Law

Family Law

A child born in California today can have three legal parents named on court orders that would not be recognized as such one state over. Legal parentage and, separately, the reach of tribal criminal jurisdiction over crimes committed on tribal land have both been rewritten substantially in the last decade, for the same underlying reason: an old default built around exactly two parents, or exactly one government's authority, stopped matching how the relationships and the crimes actually worked.

California's rule traces to a single case the legislature felt it had to answer. In re M.C., 195 Cal. App. 4th 197 (2011), involved a child with two women and a man each capable, under the state's parentage statutes, of qualifying as a legal parent, and an appellate court that read existing law, built around a presumption of exactly two parents, as leaving it no way to recognize all three despite finding that each had a genuine claim. Senate Bill 274, signed in October 2013 and effective the following January, added subdivision (c) to California Family Code section 7612, authorizing a court to recognize more than two parents when limiting a child to two would be detrimental to the child, weighing factors including the harm of removing a child from a parent who has actually filled a caretaking role, expressly without requiring a finding that any existing parent is unfit.

The Uniform Parentage Act, revised in 2017, turned California's approach into an optional provision rather than a mandatory one, letting each state decide whether to adopt a multiple-parent standard at all. California, Connecticut, Maine, Rhode Island, Vermont, and Washington had adopted some version of the 2017 Act by 2022, and Massachusetts's own version took effect in 2025. Most states have not, and the uniform act's own drafters left the choice optional rather than resolving it themselves. That means the doctrine keeps developing state legislature by state legislature rather than converging on a national standard, by design rather than by accident.

Tribal criminal jurisdiction over family and domestic violence followed a similarly incremental path, but through Congress and the Supreme Court rather than through state legislatures.

Since Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), tribes have lacked inherent criminal jurisdiction over non-Indians on tribal land, a gap that let a non-Indian abuser assault or stalk a Native spouse or partner inside Indian country with no tribal prosecutor able to reach the case and, often, no realistic prospect that a federal or state prosecutor would either. The 2013 reauthorization of the Violence Against Women Act restored a narrow slice of that authority, letting participating tribes prosecute non-Indians for domestic violence, dating violence, and violations of protection orders. The 2022 reauthorization, effective that October, expanded the list to nine categories under 25 U.S.C. ยง 1304: assault of tribal justice personnel, child violence, dating violence, domestic violence, obstruction of justice, sexual violence, sex trafficking, stalking, and violation of a protection order, renaming the whole authority special tribal criminal jurisdiction.

United States v. Cooley, 593 U.S. 345 (2021), decided the same year VAWA's expanded list was working its way through Congress, took up a narrower question than prosecution itself: whether a tribal police officer can even stop a non-Indian suspected of breaking the law. A unanimous Court, applying the second exception recognized in Montana v. United States, 450 U.S. 544 (1981), for conduct threatening the health or welfare of the tribe, held that a tribal officer has authority to detain temporarily and to search a non-Indian on a public right-of-way through a reservation for potential violations of state or federal law.

Cooley answered the traffic-stop version of the question. It did not answer what happens once the stop becomes an investigation into conduct the tribe can now actually prosecute itself under its own expanded jurisdiction, rather than simply being reported to someone else. The majority grounded the detain-and-search authority it recognized in the tribe's inherent interest in protecting its own health and welfare during the stop itself, under Montana's second exception. A tribal officer who stops a non-Indian suspected of one of the nine crimes VAWA's 2022 reauthorization now lets the tribe prosecute is relying on authority the Court defined for a narrower problem than the one the tribe can now actually pursue.