Finding agreement over issues relating to children can be tricky in any relationship breakdown. When a same-sex couple separate it can raise several unique additional questions regarding arrangements for children and each person’s legal rights’: sometimes children may have been adopted, or parents may have benefited from surrogacy or sperm donation, or one partner may have children from a previous relationship.
Julie Dann, Associate Solicitor in the family law team with Warners in Sevenoaks, looks at some of the steps and considerations same-sex couples need to bear in mind in relation to agreeing future arrangements for children.
Reaching agreement together
In any family breakup, the happiest outcome is inevitably where parents can agree arrangements for their children amicably. By keeping an open mind, and communicating with each other, it is possible to find a solution that you each feel is in the best interests of the family. That may be easier said than done when tensions are high in what can feel like the immediate aftermath of a separation, but you will thank yourselves later on if you make this cooperative approach a priority now.
Mediation is a great tool to facilitate helpful conversations between you in the early days. As well as making sure that you and your partner have set aside a specific time when you both know that you are going to focus on the arrangements for the children, a trained and independent third party will be able to guide you through the topics that you need to address to deal with all eventualities. I would suggest that issues such as holiday arrangements, birthday’s and Christmases are also considered well in advance, so that everyone is clear what the plan will be.
Simultaneously, we can be available to advise you on your legal position and start to talk about what a judge might be likely to do if it looks like arrangements can’t be agreed.
If you reach an agreement, we can formalise this to fully reflect what you have both agreed. This will clearly document the arrangements made and you will be able to use this in the future if your partner seeks to change the arrangements. It will not however be binding in the same way that a court order would.
“Parental responsibility’ – this is a legal term to reflect the duties, powers, and responsibilities that an adult may have for a child. It means having legal responsibility for making certain decisions for a child, such as what school they attend, what name they will be known by and if they will undergo medical treatment.
Parental responsibility arises automatically in a number of ways, for example, for children born after 6th April 2009:
- 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 through fertility treatment or otherwise; or
- if you adopted your child.
If your child was born through surrogacy, then you may have applied for a parental order. A parental order not only provides you with parental responsibility, but it also extinguishes the surrogate mother’s parental responsibility.
The Human Fertilisation and Embryology Act (2008) defines, in different scenarios who the legal parents of a child will be. This legislation covers a multitude of situations and it is important that you seek specific legal advice for your own circumstances.
If you have parental responsibility for a child, then should you need to make an application to court concerning their arrangements upon separation with your partner, then you will be able to do so. If you don’t have parental responsibility, then you would first need to ask the court for permission to apply. This often isn’t as onerous as it sounds, but legal advice should be sought.
If your partner had a child from a previous relationship before you married or entered into a civil partnership you will be considered the child’s step-parent – and vice versa. This does not give you automatic parental responsibility, but you can obtain this via an agreement or a court order.
If you cohabited with your partner and their child, without marriage or a civil partnership, then you will not become a step-parent, but this will not necessarily prevent you from applying to the court for a child arrangement order if you cannot agree arrangements with your partner. There will be some additional considerations, and you may have to show that you lived in the same household as the child for a three-year period. It is, therefore, best to take legal advice early on.
The court must have as its paramount concern what is in the child’s best interests, always putting their welfare a priority, and so if you have a close relationship it is still possible that the court will want to ensure that relationship can continue and is promoted.
The welfare of your child
When considering the best interests of a child in the breakdown of any relationship, the court will have consideration for the child’s age, their wishes and feelings, education and health needs, and familial and sibling links. Often, if the child is older, their wishes and feelings will carry more weight, but the overarching priority will be doing what is in their best interests.
Children can be spoken to by an independent expert as part of the court process to ensure their own views are heard. This is done in a sensitive and appropriate manner, away from the court, depending on the age and understanding of the child.
We can speak to you about the relevant welfare considerations for your child, whether you are seeking to mediate, negotiate, or make an application to court.
For further information on any aspect of relationship breakdown or divorce, please contact the family law team on 01732 747900 or email [email protected]. Warners has offices in Sevenoaks and Tonbridge in Kent.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.