For parents outside the nuclear family model, knowing where to go with disputes about children has not always been a straight forward matter. Traditionally the jurisdiction was scattered. Changes in society and rapid advances in technology have meant the family law courts in common law countries such as Canada, the UK, the USA and Australia have had to assume jurisdiction over children in increasingly complex parenting relationships.
Rapid scientific advances have enabled couples in non-traditional relationships to become birth parents. These include same sex couples who have children through donors or by surrogacy.
Cultural change has also seen men who have children from casual relationships no longer content to leave parenting to the mother and want a relationship with the child.
Increasingly, long-term de-facto relationships are a choice for many couples and the law has kept pace providing children born to unwed parents are legitimate.
All of these categories of relationship have, in recent times, been brought under the jurisdiction of family law courts.
There are a Variety of Parents Who Approach the Family Courts
As a result the family courts are being approached by a variety of parties including parents who have never lived together and have no intention of doing so. This often happens when same sex or infertile couples use a sperm donor or surrogate to have a child, or where a child is born to a casual relationship.
The rights of the donor, surrogate or casual partner to have a relationship with the child may be denied by the parent or parents with custody leading to disputes. However, those rights are increasingly being enforced by the family courts in line with the principle that the child has the right to have a substantial and significant relationship with its parents.
The Overriding Principle in Family Law – the Best Interests or Welfare of the Child
Where there are conflicting views about the upbringing of a child or one or more parents wish to exclude another from having a role in a child’s life, the family courts apply the “best interests principle” which makes everything, including the parties’ wishes, subject to what is in the best interests of the child.
Alternative Dispute Resolution
With more parties with different views involved in disputes the family courts are well aware of the potential for protracted and costly litigation. For that reason the courts have put in place alternative dispute resolution facilities as the first step in avoiding trial before a judge.
Every avenue of ADR, including counseling and mediation, will be explored by the court to assist the parties to come to a decision themselves. If the parties can’t or won’t agree only then will a Judge decide what is in the best interests of the child. Mediation and out of court settlements allow parties to decide what parenting arrangements work for them and their children.
The Family Courts’ Powers
The courts typically have power to decide and make orders about most issues to do with children including where a child lives, who a child spends time with and when, where the child goes to school or what religion, if any, the child will follow, determination of parentage by DNA testing, the rights of relatives to see and spend time with the child and care of disabled and intellectually impaired children.
The questions posed by the non-traditional family model are complex but family courts and their processes are attempting to keep pace whilst continuing to perform their function as the final arbiter of what is in the best interests of children.
Where Do You Find Out if You Can Approach the Court?
Most family courts have basic information on their websites about who can come to the court for assistance and Court Registries will answer questions.