Same Sex Parenting and Family Law

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In Australia, as in many places around the globe, the landscape of the family structure is changing rapidly. As the legalisation of same sex marriage and same sex couple parenting becomes more solidified, the rights and best interests of the children of these relationships, is becoming a paramount issue.

The Family Law Act 1975 has been the governing federal law for the definition of parentage for families in Australia. Currently the Family Law Act defines a parent as one that is the biological parent of a child or the legally adoptive parent of a child. Non-biological parents were not considered legal parents of a child unless they had adopted the child or received a “parenting order” formalising their legal rights as parents of the child. However, case law is emerging and developing and the arguably narrow definitions are expanding to allow for both persons in a same sex couple relationship or marriage to be considered as legal parents of their children.

Recently, the definitions of families and in particular “parents”, have begun to change to reflect a more definitive right of same sex couples to have court-ordered time with their children following the breakdown of a relationship. The law is continually evolving to cater to blended family situations, including:

• Same sex couple families
• Lesbian couples where the sperm donor is known and involved in the life of the child
• Families in which a same sex couple be may be co-parenting with an X-heterosexual spouse
• Separated same sex families where both parents continue to co-parent the child
• Single parent families
• Multi-parent families where both gay and lesbian couples are parenting as a group

The legal rights of these various blended families, however, are also subject to the laws of each of the different territories, or states, of Australia. For example, in New South Wales the following rights have been conferred on same sex couples with regard to adoption and parenting.

• Same sex couples may file a joint petition for adoption
• Persons identifying as LGBT may file a single parent petition for adoption
• Same sex parent adoption is permitted

With regard to Assisted Reproduction Technology and Surrogacy (ART/IVF), the law of New South Wales is as follows:

• Both procedures are legal for surrogates of gay males
• Both procedures are legal for lesbian couples
• Commercial surrogacy is illegal
• Altruistic surrogacy is legal
• Non-genetic parent of a couple is automatically recognised at birth.

The greatest concern in all of these various family units is to protect the best interests of the child. To date there is research that indicates that children raised by same sex couple families do not suffer any developmental, emotional, psychological or physical issues that are significantly different from children raised in heterosexual families. The law is now recognizing that in addition to the child’s biological parents, there are other people in the child’s life that provide “significant care” to the child. These caregivers are now being afforded avenues to obtain parenting orders from a court to formalise issues such as what time they spend with a child or their level of parental responsibility with respect to that child. Allowing these caregivers legal rights for the children they are raising or play a significant role in their welfare and development protects the child and the parent, thereby stabilising the family unit.

As the laws and the courts address the ongoing changing dynamics of our families and the raising of our children, the main concern for all involved will always hark back to the best interests of the child. As such, under any family circumstances, the court will always look to putting the child’s legal, physical, emotional, psychological and economic needs first. Thereby ensuring the child is receiving the best possible care and the most stable home environment available to them.

If you, or someone you know, is in need of Family Law advice, please contact the offices of Owen Hodge Lawyers and request a consultation.

We at Owen Hodge are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to contact us at your earliest convenience to schedule a professional and discreet consultation on 1800 770 780.

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