Navigating Parental Rights in Family Law: Legal Roles Explained
By Holly Pitt
Senior Solicitor
Same sex relationships I Non biological children I Family Law Penrith Richmond
Blended families and same-sex families are now commonplace in Australia, where parents are often not biologically related to the people they see as their children. This can happen when parents bring children from previous relationships into new partnerships or indeed have children born of artificial conception with a same-sex partner. With the rise of changing family structures, understanding who holds parental rights and responsibilities can be complex, especially when it comes to family law.
In Australia, the Family Law Act 1975 (Cth) governs the determination of parentage and parental rights and state law determines the parentage of children born out of surrogacy arrangements.
Who can be a “parent”?
- Biological Parents: There is a presumption of parentage that arises when a child is born of 2 people that are married, cohabitating or when they are listed as parents on the child’s birth certificate. Traditionally, this would be a biological mother and father of a child. However, it is commonplace to see same-sex parents reflected on a birth certificate (protecting their parental rights).
- Parents through Artificial Conception: Where a child is born of a woman who has undergone an artificial conception procedure while the woman was married to or in a de facto relationship with the other intended parent (her partner), that partner is also considered a parent. If a donor (not the biological mother and her partner) provided genetic material and consented to its use in the procedure, that person is not considered a parent.
- Adoptive Parents: Adoptive parents are granted the same legal rights and responsibilities as biological parents. When a child is legally adopted, the legal relationship is transferred from the biological parent to the adoptive parent.
- Step-Parents: Step-parents are individuals married to or in a de facto relationship with the biological parent. While step-parents do not automatically have parental rights, if they separate from the biological parent and have a significant caregiving relationship with the child, they can seek parenting orders through the Family Court to formalise their role and the parenting arrangements.
- De Facto Parents: A person who assumes a primary caregiving role for a child, even if they are not biologically related, may be considered a de facto parent. The Family Court will assess the nature and extent of this caregiving role and determine if the person should be granted parental rights.
Parental Rights and Responsibilities in Blended Families
The Family Law Act prioritises the best interests of the child when making decisions about their care. In families, parental responsibilities are often shared between biological parents, step-parents, and de facto parents. When parents are separated, there is no longer (since May 2024) the presumption that both parents should have equal shared parental responsibility. This change, while still being explored and tested in Courts, has been seen as a positive change for victims of family violence, who previously may have felt forced to comply with shared care arrangements for children that compromised safety.
If parents are unable to agree on issues such as living arrangements or decision-making, they can seek parenting orders from the Family Court. These orders can address where the child will live, how much time they will spend with each parent, and how decisions will be made regarding the child’s welfare. However, before commencing in Court, parents must first attend mediation in attempts to resolve their dispute. There are only certain circumstances where mediation is not required, usually in cases of violence or concerns for the welfare of one or both parties and any child.
Legal Challenges in Blended Families
All families are susceptible to facing unique challenges when it comes to legal recognition of parental roles. Even when parental rights are clear, disputes may arise about time spent with the child, major decisions, or the child’s living arrangements. In such cases, seeking professional legal advice can help prevent conflict and ensure the child’s well-being is prioritised.
If you are navigating the complexities of blended family dynamics or need clarity on your parental rights, it is important to seek legal advice. Book a consultation with one of our experienced family law solicitors at Rafton Family Lawyers to better understand your options.
Rafton Family Lawyers Specialist family law team based at Penrith Richmond St Marys Glenmore Park Parramatta Macarthur