Same-sex couples and custody disputes

Posted on Sep 13, 2018 by Terry Morgan   |   Categories: Family Law

The Marriage Act 1961 no longer prevents same-sex couples from entering into a legal marriage in Australia. What does this mean for disputes about parenting arrangements for their children?

One of the first steps in any parenting matter before the court, is to determine who is a legal parent of the child. If the couple used a donor to conceive the child, then the marital status of the couple will be relevant. If the couple was married at the time of conception, there is usually a presumption that the couple are the legal parents of the child (whether or not they are the biological parents).

Marriage is easy to prove: there’s a formal certificate issued which shows the date of marriage.

If the couple is in a de facto relationship, things can become a bit more complicated.

If the court finds the applicant is not a legal parent of the child, there are other ways to seek orders that the child live with or spend time with them. The Family Law Act makes specific provision for any person to apply to the court for parenting orders, so long as they are concerned with the care, welfare or development of the child.