Child arrangements after same sex couple divorce or separation

Finding agreement over issues relating to children can be difficult in any relationship breakdown and additional questions regarding arrangements for children in same sex couples may arise depending on if the child is adopted, from a surrogate, sperm donor or from a previous relationship.

A solicitor in the family law team looks at some of the steps and considerations same sex couples need to bear in mind when looking at future arrangements for children.

Reaching agreement

Like in most relationships, if an amicable resolution can be reached following separation, it will benefit everyone involved, especially the children. It is always best to keep open lines of communication with your former partner, if it is possible to do so.

Our team can assist from an early stage, by helping you make arrangements which are focused on your child’s best interests.  We can communicate with your former partner’s legal representative to agree the way forward, or we could help you organise mediation.

Mediation allows both parents speak face to face with a trained independent third party who will facilitate the difficult discussions.  We can advise on your legal position and help you reach agreement on things like financial provisions, holiday arrangements and choice of school.

If you reach an agreement, we can assist in making sure it is legally binding and formalised to fully reflect what you have both agreed.

Parental responsibility

If an agreement cannot be reached, then it is necessary to consider if you have ‘parental responsibility’.  Parental responsibility gives you the legal right to make certain decisions over your child.

If you have parental responsibility you can apply directly to court for a ‘child arrangements order’ in the event of a dispute, stipulating where your child lives and spends time.  If you do not have parental responsibility, it may be necessary to make a separate application to the court first.

Parental responsibility arises in several ways:

  • 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.

The Human Fertilisation and Embryology Act (2008) defines, in different scenarios who the legal parent or parents of a child will be and the information in this section only applies to children born after 6 April 2009

Surrogacy and parental orders

Generally, if you had a surrogate carry your child then you may have parental responsibility if you 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. In these circumstances, you should apply for a parental order within six months of the child being born.

Step parents’ rights

If your former 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 former partner and their child but did not marry or enter a civil partnership, then you will not be considered to be a step parent.  You may still be able to apply to court for a child arrangements order if you cannot agree arrangements with your former partner and if you can show that you lived in the same household as the child for a three-year period.

The court must have as its paramount concern what is in the child’s best interests, and so if you have a close relationship it is still likely the court will want to ensure that relationship can continue and is promoted.

The welfare of your child

The welfare considerations for a child following the breakdown of any relationship require the court to look at factors such as the child’s age, their wishes and feelings, their education and health needs.  The older the child is, the more weight will be given to their own wishes and feelings.

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.

For further information on child arrangements any aspect of relationship breakdown or divorce, please contact us on or 01753 889995.

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