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Amanda Melton: Custody Battle Between Three Parents

Date:23 FEB 2012

Amanda MeltonThe Court of Appeal is shortly expected to give their judgment on the case concerning lesbian parents who seek to marginalise the relationship between their son and his natural father. The focus of their argument is that they wanted to bring up the child in a two parent family. In contemplation of that they sought to reach an agreement with a close male friend and former husband of one of them (albeit in what is described as a marriage of convenience). They entered into an arrangement whereby he would act as a donor but would then have no further role in the child’s life.

There perhaps lies the first problem. He was their friend. He was the former husband of one of them. He was bound to come into regular contact with a boy whom he knew to be his natural child. Was he really supposed to play no role in that child’s future but stand by and watch others make decisions in relation to his upbringing? Whilst the primary carers are to be praised for their obviously firm desire to bring their son up in a two parent family, their plan was surely doomed to failure on the choice of donor.

Is their approach reasonable? Interestingly, it seems their position is they do not seek to exclude the father completely. Indeed he has already been visiting the child for five hours each fortnight. Is it therefore reasonable to expect that having developed a bond the father should never seek the opportunity to increase or develop that relationship. The ethos behind the Children Act and what all courts try to achieve is of course “what is in the best interests of the child” – not the parents. Can it be fair that this little boy cannot develop a relationship with his father? Indeed it surely begs the question why should the boy be treated any differently to a child born to a heterosexual couple? When parents separate or a child is born to unmarried parents there is an expectation, save in exceptional circumstances, that the child should enjoy a relationship with his father. Should it be any different in this situation?

The principal carers seek to achieve a one home two parent environment for their child. That is no doubt well meant and indeed admirable. However, many relationships end in separation. A child so lovingly brought into a two parent family will find himself sharing a home between his mother and father and each with new partners – two homes; four parents! When approached in this way it seems the parents are unwittingly suggesting that because they are a same-sex couple they should enjoy a status which is not available to heterosexual couples. After all would a heterosexual couple stand any chance of successfully arguing that they entered into a contract prior to their child’s birth in which they agreed that on separation the other parent would have no contact? An interesting thought - but in my view doomed to failure.

Amanda Melton is a Partner and the Head of the Family Team at Matthew Arnold & Baldwin.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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