The courts are all talking about same sex parenting disputes. The Court of Appeal has this week been hearing from a donor applying for contact with his biological son against a lesbian couple who say they feel “bitterness and betrayal” (the case has not yet been decided but you can read the coverage in the Telegraph here). This follows the decision just a few weeks ago by High Court judge Mr Justice Hedley (in P&L (minors) 2011, available here in full) which dealt with a very long and bitter dispute about the role of gay donor dads to two children (aged 10 and 6) being raised by their lesbian mothers. The courts are feeling their way with what they call new models of alternative parenting, and trying to develop an approach for these types of cases, which are far from traditional family law disputes.
Having advised many same sex parents (both at the planning stages and those who end up in dispute) we see some wonderfully successful co-parenting arrangements. But where they go wrong, they go horribly wrong. What is interesting, though, is that parents always seem to fall into one camp or the other. I can honestly say that none of the clients we have advised at the planning stage has ever come back for legal representation later. Equally, not one of the clients we have represented in disputes took legal advice at the outset.
So here are our tips on how to make your co-parenting or known donation arrangement a successful one, and how to avoid ending up in court:
Talk, talk, talk (and more importantly listen, listen, listen)
Don’t rush into trying to conceive. Get to know each other, have honest conversations about the roles you will have and how much involvement you all want. Be as clear as you can about your expectations and be honest with each other and yourselves. If things don’t feel right, have the courage to walk away. There are always other options. You could find another donor or co-parent, or choose unknown donation (as mums) or surrogacy (as dads) if what you really want is parental autonomy.
Understand what roles you will all have
Justice Hedley was keen to “stress the importance of agreeing the future roles of the parties before the first child is born“. And this fits with our experience. Almost all the cases we have seen which have ended up in dispute are ultimately about status. Is the biological dad a father or a donor? Are you equal co-parents, or primary and secondary parents, or parents with another adult role model? Make sure you talk about how you see yourselves and each other, as well as the day to day practicalities of managing your child’s care.
Understand how the law works
The law on parentage is complicated, and who will be the legal parents (and what goes on the birth certificate) depends on the facts, including how you conceive and the birth mother’s marital status. There may be all sorts of different options, both for choosing who the legal parents are and for giving some parental status to the other co-parents if you want to, and problems can often arise where parents have expectations (for example about what goes on the birth certificate) which can’t be met. Take legal advice, or check out the free information on our website about this.
Put in place a written agreement
Donor agreements (or preconception agreements) may not (strictly) be legally binding, but they are incredibly useful. I have always advised parents that putting something in writing helps with the planning, facilitates honest conversations and sets a framework which everyone will feel morally bound by, giving clarity and transparency and setting a really strong foundation.
However, it now seems they may be more legally binding than we previously thought. Although the issue is still untested (the parents in P&L did not have a written agreement, which I suppose comes back to my point that it is not the parents with properly prepared legal agreements who end up in court) the case suggests that the court will pay attention if there is one. Mr Justice Hedley said, in the strongest indication yet, that “the court will be bound to give careful consideration and weight to any such agreement“.
There is no standard format for a donor or co-parenting agreement, but having something which is accurate and personal to you (and prepared with a solid understanding of how the law applies in your particular circumstances) will be much more helpful than any standard pro forma.
If you need help with planning a co-parenting or known donation arrangement, or if you need representation in a dispute, feel free to contact us.