Family Law Library

Establishing co-parents as legal parents of a child

A child born to a lesbian couple will generally have a birth mother and a lesbian co-mother. The current family law system recognizes the birth mother as a legal parent.

A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother. Alternatively, a child may have two gay co-fathers as well as a birth mother. If there is a birth father, he will be a legal parent along with the birth mother.

The lesbian co-mother or gay co-father(s) can apply to the Family Court of Australia for a parenting order, as ‘other people significant to the care, welfare and development’ of the child. But the lesbian co-mother and gay co-father(s) will be treated in the same way as a social parent is treated under the law, they will not be treated in the same way as a birth parent.

A person who is a later partner of a birth mother or birth father, is not viewed any differently to a person in a same sex couple who is either the partner of the birth mother or birth father or an active co-parent at the time a child is born. A partial resolution to this issue is for the co-parents to apply to adopt the child, this step will entitle the co-parent to many of the rights of a legal parent.

This issue is of particular concern to a gay couple who are both listed as co-fathers. Adoption is important in order to enable at least one parent to be a legal parent.