Creating Families: Step-parents within Same-Sex Couples
Families come in many shapes and sizes and many children grow up in families where they have more parental figures than just their mother and father. My colleague Lisa has previously commented on the legal definition of a step-parent here, but in a world where family dynamics may mean that there are many adults who fall outside the legal scope of what a step-parent is, how does this definition work in practice and does it make a difference for same-sex couples?
I have set out the law on same-sex parenting in a previous blog post but in broad terms, the law does not discriminate between opposite and same sex step-parents, but it can become more complex. To help explain these complexities, I have used example case studies of two mothers, Alex and baby Bailey and Sam and baby Freddie.
Both Alex and Sam decided to have babies as single women and underwent fertility treatment at UK licenced clinics using anonymous sperm donors.
Bailey and Freddie’s births were both registered with only their mothers on their birth certificates, so only Alex holds parental responsibility for Bailey, and only Sam holds parental responsibility for Freddie.
The mothers then begin new same-sex relationships, and Alex starts living with Charlie and Sam starts living with Toni.
The key difference between these mothers however is that Alex and Charlie decide to get married, but Sam and Toni don’t. The day-to-day dynamics of their parents’ relationships make very little difference for Bailey and Freddie, they each feel that they have two loving parents, but the legal landscape is very different. Neither Charlie nor Toni hold automatic parental responsibility for their partner’s children. Without parental responsibility, the decisions that Charlie and Toni can make about Bailey and Freddie are limited, and only Alex and Sam could legally make decisions for their respective children, such as consenting to medical treatment, for example.
As Alex’s spouse, Charlie is not automatically afforded parental responsibility for Bailey, but by virtue of being married to Alex, she is legally considered to be a step-parent. If Alex wishes for Charlie to be granted parental responsibility for Bailey, there are several options which Alex and Charlie can explore including adoption and entering into a parental responsibility agreement. For Sam and Toni, however, these options look very different as Sam cannot simply grant Toni parental responsibility by agreement. Therefore for Toni to gain parental responsibility for Freddie, as she is not legally Freddie’s step-parent because Sam and Toni are not married, there would need to be a formal court order either by way of Toni adopting Freddie, or by way of a Child Arrangements Order providing for Freddie to live with Toni and Sam.
What would happen if at some point later, both parties decided to separate? Say the breakdown of the relationships was very acrimonious, and Alex decided that Bailey should no longer be seeing Charlie, and Sam decided that Toni should no longer see Freddie. If neither Charlie nor Toni were ever granted parental responsibility for the children they had been raising, where does this leave them and their relationships with the children they have raised as their own moving forward?
For Charlie, irrespective of whether she holds parental responsibility or not, as a legal step-parent (through marriage) she can make an application to the court and ask the court to determine the time that she spends with Bailey, even after her and Alex’s divorce is granted. For Toni however, if she has lived with Freddie for less than three years and does not hold parental responsibility for him, then Toni would need to seek the permission of the court to make an application, which can come at a significant cost both financially and emotionally and there is no guarantee of success, as each case will be assessed on a case by case basis with a focus on what is in the best interests of the child in question.
There are many debates as to the benefits of a child having two parents, but the issue with parental responsibility specifically is that it is very difficult to revoke once granted, so it’s not a decision that should be taken lightly particularly when it comes to sharing parental responsibility for your child with a new partner. Careful consideration should be given by any parent who wishes to grant parental responsibility to a partner, and therefore share, parental responsibility for their child for the remainder of their minority.
It should be noted that a different framework applies to the legal parentage and parental responsibility of children born to known sperm donors or children born to a mother and a father.
Inevitably each family’s circumstances are going to be different, and parents are encouraged to use non-court dispute resolution options to resolve disputes, such as mediation, in order to reach an agreement that is in the best interests of their children. A court application should not be seen as the only way to deal with arrangements when parents cannot agree.
Whilst I hope this blog has been helpful, the relationship between parents, step-parents and children can be a complex area of law. If you need tailored advice regarding such a matter, then please get in touch with us to arrange a consultation with one of our specialist family lawyers.
Eleanor Pollard is an Associate Solicitor in our Horsham team