I’ve been mulling over a recent news story from Australia that someone sent to me. It’s a rather complicated tale.
Ms. Fabian and Ms. Halifax (they only give last names in the story) were in a relationship for about seven years. During that time, each of them gave birth to a child. Ms. Halifax used sperm from a family friend, identified as Mr. Dalton. That child is now seven. Ms. Fabian used sperm from an anonymous donor. That child, a girl, is the subject of the litigation. She is now three.
The two women separated when the daughter was 20 months old. At the time they lived in Queensland, but at least Ms. Fabian, and perhaps both, were from New South Wales. Ms. Fabian now wants to return to New South Wales.
Her request to move is being opposed not only by her former partner, Ms. Halifax, but also by a gay male couple. According to the newspaper story, this couple “cannot be named,” but one of them is apparently the donor for the other child, which would mean he is Mr. Dalton. An Australian court has determined that she should not move while the requests of the various parties are considered.
(I will confess to being weak in Australian geography. I believe both Queensland and New South Wales are states, and I think they are adjoining. But they are large states and so moving from one to the other could mean moving some distance away.)
Of course, generally people are free to move about as they choose. But when a parent wants to move and take her child with her, it means disrupting that child’s relationships with people who will not be moving. Ordinarily it is within a parent’s rights to decide that this cost–the disruption of relationships–is worth the benefits of the move. Courts are not generally inclined to get involved.
However, if the person objecting to the move is also a parent, then a court will make some sort of inquiry before allowing the move. (I raised this during the recent discussion of sperm donors as legal parents–because a legal parent has a right to continued contact with the child, they can object to the move.)
It seems in Australia, the category of people who can object to the move may be somewhat broader than it is here. People who are “connected with the care, welfare and development of the child” may apply for a parenting order. But it is not my purpose to discuss the intricacies of Australian or US law on this point.
I’m actually not particularly troubled by the possibility of the child having four parents. To me this is a question of fact–if the two men were sufficiently engaged with the child’s life, then they might warrant recognition. Also, and this should come as no surprise to those reading here regularly, the lack of a biological link does not matter to me.
What interests me is the description of the roles the two men played. For me this is critical. If they functioned as parents for a substantial period of time, then I would be inclined to view them as parents. (It is clear that whatever role they played, it was with the consent of the mothers.)
The article includes some (but perhaps not all) of the factors the men raised: They were publically acknowledged as parents by being called “daddy”; by participating in a commitment ceremony at the child’s birth and by marching in the “family” section of the gay pride parade. They were present at the 12th week pregnancy scan and visited the hospital on the day the child was born. And they were listed as ’emergency contacts” on the day care center form.
I cannot help but contrast this with the evidence women asserting claims to be de facto parents produce. You can find at least half-a-dozen cases that I’ve discussed on the blog–some where the women won and some where the women lost. But win or lose, the evidence offered by the women I’m thinking of is qualitatively different. It’s far more about the hands-on care offered than about the public acknowledgement.
In truth, it seems to me that the men are claiming rights on a basis akin to holding out. Perhaps that is not so surprising. If you go back and read that earlier post (and the ones that follow) you will see this is a historically male path to parenthood. It makes me wonder if this legacy of gendered family law will find its way into the legal regulation of decidedly modern families.