Same-sex relationships have revolutionised child custody

Same-sex relationships have revolutionised not only martial law but also child custody. But in the interest of the child’s well-being, is it alright to disregard the rights of a non-biological parent?

The landscape of marriage is changing fast, necessitating a legal overhaul to afford all parents - biological or otherwise - fair rights in the event of custody battles.

In the past, mothers were favoured in heterosexual custody battles, with fathers pushing for more rights. Those days, mothers were seen as the more nurturing of parents.

However, in today's world where same-sex marriages are becoming the norm, a child often has two mothers, or two fathers, which makes it harder to determine legal custody based on gender alone.

Is it alright to cut a child off from your ex-partner (whom your child adores!) just because they don’t share the same blood?

One might say that biology should play a role in determining who gets custody of the child when the parents separate, but even that is not always cut and dry.

Look for instance in these recent cases that occurred in the USA

A gay man got his sister to agree to donate her egg, which was fertilised with his partner's sperm. The non-biological father never legally adopted the child, which led to a nasty custody battle when the men separated.

Two gay men and two lesbians donated sperm from the one man and eggs from one woman, which resulted in a baby. They went as far as buying identical apartments and decorating them identically.

The plan was to split primary parenting duties amongst the four parents in 3-month stints to all contribute to raising the child/ ren in a meaningful way. However, the experiment lasted only nine months and resulted in a monumental custody battle.

A lesbian couple split up after living together and raising a child for ten years. The non-biological mother loved the child as her own, and despite the fact that she had no legal obligation, continued writing out a child-support check every month because it was the right thing to do.

Unfortunately, many cases between biological and non-biological parents can quickly escalate into nasty battles that hurt the children most. There now is a call for America to update state laws to define de facto parents - those who share no biological connection with the child. 

Legal adoption might also be an option for non-biological parents. It is believed that defining the role of non-biological parents would give that person a claim to assert their custodial rights.

We're left with the question: How would such a case be dealt with in Australia?

Only in a few rare cases have step-parents gained parental rights in Australia.  A parent is regarded by law as someone who provides genetic material or gives birth to and raises a child.

However, it also includes those who provide genetic material without giving birth, such as through artificial conception, surrogates, step- and adoptive parents and those who care for and raise a child but are not biological or birth parents.

These varied requirements open up to a full range of complexities, and considerations. In essence, a child might well have more than two parents. Some of the best parents don’t share the same blood but have shared a connection as close as any parent and child.

The Status of Children Act 1988 (NSW) states that the Supreme Court may decide who the parents of a child are, under section 12 of the Act, as well as sections 9-14 which read as follows:

  • a man is a father because he is married to a woman who has given birth to a child;
  • a man is a father because he has lived with the mother for a certain period of time;
  • a person is a parent because their name is on the birth certificate;
  • a man is a father who has made a formal paternity acknowledgement; and
  • a person is a parent in certain circumstances arising from the birth of a child following an in vitro fertilisation procedure.

Any adult who is involved in the raising, caring, development or welfare of a child, may apply for a family law order that grants them parental responsibility, or partial parental responsibility in Australia.

However, the courts encourage parents to put the child's well being first, even after they have separated.

If they find it impossible to agree, they can apply for a parenting order which formally separates aspects of parental responsibility and allocates it to the parents based on an assessment of the child's best interests. Perhaps that would be something for America to consider too, particularly in the complex field of same-sex and non-biological custody battles.

Comments by family lawyer

The status of a non-biological mother in a female same-sex relationship would be only an issue if the child were conceived when they were not in a de facto relationship.

In that case, they are a step-parent, and your article applies. If they were in a de facto relationship at the time the child was conceived then the non-biological mother is considered a parent under s60H of the FLA, so the biological factor becomes irrelevant.

I have several of these matters before the court. The court has never indicated that they favour the biological mother over the non-biological mother because they are both considered parents assuming s60H applied. The issue of favour arises more in relation to the primary carer whomever that may be.

The court has always favoured the primary carer which just happens to usually be the mother in traditional heterosexual relationships or the birth mother in same-sex relationships.

Further, in female same-sex parenting matters, you can also have a case where the ‘birth mother’ is not the biological mother, but her de facto partner is. It’s common in same-sex relationships for the couple to decide, often for financial reasons, that one of the couples will carry the children, but they might use eggs from either parent to create the child.  

Two mothers in a child custody dispute