Info & Advice

Same sex parents who separate: what to consider?

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In our ever changing society, it is common for same sex couples to jointly raise children together. But what happens if the couple later separate? This article looks at everything you need to consider if you find yourself in this situation.

Parental Responsibility for same sex couples

Mothers automatically obtain parental responsibility when they give birth. Same sex couples who have a child, where only one is the biological parent, will both have parental responsibility if they entered into a civil partnership/marriage prior to starting fertility treatment such as donor insemination or IVF. Here, the mother who is carrying the child will gain parental responsibility, and their partner will also gain it, providing they are named on the birth certificate.

However, complications can arise for same sex parents who are not married or in a civil partnership because current law means the partner who does not give birth will not automatically acquire parental rights. Depending on the circumstances, they may need to make an application to the court as well as obtaining the consent of the biological mother before being registered as a parent on the child’s birth certificate. Other ways to obtain parental responsibility include entering into a civil partnership/marriage with the child’s birth mother, making a parental responsibility agreement or jointly registering the birth.

Parental responsibility arises automatically in several ways. These are:

  • If you are the birth mother of the child. This includes a mother who carried a child as a result of IVF with a sperm donor
  • If you were married or in a civil partnership with the mother of the child when the child was born, whether conceived via fertility treatment or otherwise
  • If the child is adopted

If you cannot agree with your ex on these issues and you have parental responsibility, you can apply directly to the court for a child arrangements order which sets out where the child lives and who they spend time with. If you do not hold parental responsibility, it may be necessary to make a separate application to the court for permission, first.

Surrogacy and parental orders

If you had a surrogate carry your child, then you may have parental responsibility if you applied for a parental order. This provides you with parental responsibility and extinguishes the surrogate mother’s parental responsibility.

A parental order is needed when a child is carried by a surrogate because it transfers the legal status from the surrogate to the intended parents, that is, the couple the child will live with once it is born. Without a parental order, the intended parents will not be considered the child’s legal parents which could mean not having the authority to make decisions about the child’s upbringing, or legal complications should you separate or dissolve your civil partnership.

A parental order should be applied for within six months of the child being born. Again, if you have a parental order and therefore parental responsibility, you can directly apply for a child arrangements order.

Unmarried same sex couples

There are many same sex couples who have children together intending to be a family but who do not go on to regularise the legal position by getting married or entering into a civil partnership. Previous cases before the courts have developed to recognise the concept of the “psychological parent”. The rationale behind this focus is that the family unit in which the child is raised is likely to be of more relevance to the child’s day-to-day wellbeing than biological or legal parentage. This has led to the courts looking towards the child’s experience of being parented, as opposed to concentrating on the legal status of a parent or a biological link.

Ultimately, it is about the rights of the child, rather than the rights of the adults involved in their upbringing, and any decision relating to the child will be based on what is in the child’s best interests.

Fathers from previous relationships

A father to whom you were previously married will automatically have parental responsibility for any child of that marriage. If you were not married, then whether or not he will have parental responsibility will depend on your child’s date of birth, whether he is on the child’s birth certificate or obtained parental responsibility via other ways. If a father holds parental responsibility, he has the right to be involved in all the important decisions made in relation to the child’s upbringing.

Child arrangements orders for same sex parents

As discussed above, a child arrangements order states who the child lives with and who the child spends time with and when. Applying for a child arrangements order involves making an application to your local family court. If you are not married or in a civil partnership but have been living with your partner’s child for a period of three years in the last five, you will automatically be able to make an application. If not, you will need the permission of everyone who already holds parental responsibility for the child. Without this, you will need to get the permission of the court in an application for leave. The court will grant permission if you can show you have a connection with the child and that your application will not disrupt their life.

Over the years, the courts have recognised that non-biological parents within same sex relationships have an important and ongoing role in a child’s life when their relationship breaks down. Your rights will depend on your legal relationship to your partner and child. If you and your partner share parental responsibility, either can apply for a child arrangements order to decide who they will live with and how much time they spend with the other parent.

If you adopted a child together, you will both remain that child’s legal parents despite separating, and either of you will be able to apply for orders concerning them without having to first obtain the court’s permission. Even if you subsequently divorce or dissolve your civil partnership, neither party will lose parental responsibility for the child.

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