Parental rights

[Thenorthpoleiscold]

Hi,

First time posting in legal matters but could really do with some advice if anyone here can help. I have to keep it very generic for fear of this being seen but I’ll do my best.

So myself and my partner(same sex females and now exes) had a child(I am birth mother) we used a known donor who has been very very much involved with our child’s life since birth(around 3 years old now).

However ex has moved quite a distance away and now does not speak to child’s biological father(I myself have a very good relationship with him and his family) ex does take our child a few days a week.

Now this is where I am losing sleep. My biggest fear is that if I should drop dead, ex would assume full rights to our child, take said child to far away place they now live and no one(including my family would ever get to see my child)

Is there anything I can do that in the event of my death, biological dad would assume parental rights to ensure this doesn’t happen, or can anything be put in place that ex couldn’t just disappear with our child never to be seen again?

Thanks for any advice that can be given

Should also add I’m in the UK.

@Thenorthpoleiscold I know you have posted in legal but I would also post this in https://www.mumsnet.com/talk/donor_conception because a lot of the posters will have looked into the legal implications of a known donor.

Does he have parental responsibility? If not he can apply for it. If you die he can apply to court for contact regardless of whether he has legal PR or not as it could be conferred at that point but no if you're dead people with PR can make decisions around the child and your wishes wouldn't count for much.

If there’s an adoption certificate I don’t think you can do this

He doesn’t have parental rights no. It’s myself and my STBEW that are on the birth certificate. But we never signed anything to ever say that he didn’t want parental rights.

What could I do right now living that would ensure my child would have to stay in everyone’s life. The thought my child could be taken away is really affecting my mental health at the moment.

I do have a family law solicitor I’m dealing with at the moment but we haven’t spoken about this yet as we are trying to get financials and the divorced sorted first.

I’m no lawyer but because there is no adoption certificate it looks like there was a mix up when you registered your child’s birth. With the registrar assuming you have had the child using an anonymous donor. This would make it possible to assign your partner as the child’s legal parent without adoption process. If this is the case you can go to court to legally establish who your child’s father is. He will have parental rights.

Sorry I need to be more clear, we were married at point of conception so ex is the legal parent. I’m in Scotland, I should I have said this to begin with but really didn’t want to give my exact whereabouts.

This is inaccurate. If the couple were married and used artifical insemination then the wife is the child's parent (unless she didn't consent). There is no need for adoption and it makes no difference whether they knew the donor or not. If they were not married/civil partners then the law is different and they would have to use a clinic to both be on the birth certificate.

Disclaimer: I am not 100% sure of the position in Scotland but I think this is a UK law.

https://www.legislation.gov.uk/ukpga/2008/22/section/42?view=extent

I don't know about the legal side of it all, but why are you letting this purely hypothetical future scenario ruin your mental health? The important thing is that, in the unlikely event that you due before your child reaches adulthood, said child will be with a parent loves him or her. But fortunately enough, you will probably live to a ripe old age

It's a complicated area and moves with case law.

www.harpermacleod.co.uk/insights/winds-of-change/

Your fear is no different to that in any separation case.

If I understand correctly

Your fear is that the legal parent, your ex, who has PR will take the child?
Not that the biological dad will?

Every case in Scotland is assessed on the particular facts and circumstances but with regard to the welfare of the child.

You can leave a will with an expression of your intention.

You could look at granting a PR order to him.

But the situation would be the same as a case where a mum dies and the father who has no or minimal contact swoops in and tries to take the child away.

Your family and the biological father could raise actions as relevant persons to the child and argue they should remain with them.

Given your ex has full PR, and is to all intents and purposes a parent to your child, with an established relationship who see them several days each week, I think you'd have a hard time persuading anyone that your ex shouldn't be the default parent if you died - that's in your child's best interests.

Unless she is abusive or something?

Presumably the biological father could ask the courts for regular contact if he has a relationship with his child.

and the father who has no or minimal contact swoops in and tries to take the child awa

Except this isn't a parent who has no or minimal contact - it's a parent who see their child for several days each week.

@titchy correct. Apologies I'm juggling and replying.

I was trying to emphasise that the separation is irrelevant.

The point is the situation would be looked at if someone were to challenge it.

Those people being all those people consistent to child.

So if I’m married and have an affair my husband is the legal father not the child’s biological father ?

@FatFatMary presumed to be yes. Can be overturned by dna test etc but the legal father is presumed to be the person married to the mother.

No, you can't change who your child's legal parent is when you break up. Many separated people would love to I am sure!

The sex of your partner makes no difference to this.

Well this section is utterly irrelevant to that situation as it applies to married women having artificial insemination. In the scenario you suggest the law would presume your husband was the father but it could be displaced by a dna test. But those are entirely different situations.

Can I just make it clear that I’m not suggesting my ex doesn’t have her continuing full parental rights. My ex is a great mother and I would never ever take that away from her.

That said, she has moved to the other side of the country from where we both grew up, where we both agreed our child would grow up. She does not have any relationship with my family nor our child’s biological dads. My concerns are purely round the fact what right any of them have on the event I should pass away. And I know what you are saying, that’s it purely hypothetical but I could die in my sleep tonight. We are never guaranteed tomorrow and I need to know I can somehow make sure my child will be able to see her biological parent, grandparents, cousins etc.

I think what I was trying to ask was if biological dad could have shared parental rights along with my ex. Not that he should have sole parental rights.

I don’t know why she moved, but if you are still co parenting to the extent that she sees your joint child a few days a week, how is this happening?

IANAL, but it feels quite unlikely that you could add a third person with parental rights without her consent.

He can apply for a declaration of parentage and parental responsibility if he wants it now or in the future