Educate Yourself About Law

Child Custody and Visitation When Divorcing Your Same-Sex Spouse

by Erika Reed

Australia legalised same-sex marriage on 9 December 2017. Rather logically, this means that same-sex divorce was also legalised at this time. As with any divorce, custody arrangements for children are a prevalent concern, but same-sex relationships (where one of the co-parents is the birth parent's same-sex partner) can have additional provisions when it comes to determining custody and the co-parents' subsequent relationship with the child or children. So what happens to your relationship with your children when you divorce your same-sex partner?

Birth Parent

Many issues relating to custody arrangements will be determined by whether or not you are the child's birth parent. This favours you if you wish to retain primary custody of your child. This does not necessarily invalidate your rights and obligations if you are the co-parent who is not the child's birth parent. While it is possible that you adopted your partner's child, there is a general preference for your relationship with the child to be formalised with a parenting order instead. This parenting order will not have automatically come into force with the birth of your partner's child, or with your marriage, but will have been drafted and executed separately. A parenting order is generally preferred over adoption, as adoption will supersede the legal rights of the child's other birth parent.

Parenting Order

A parenting order, however, does not lock you out of the child's life after your divorce, even though you conceivably have less of a right to custody than if you had formally adopted the child. This does not mean that you will no longer be a part of your child's life. As with any divorce, the best interests of the child are at the forefront of any decision, and while the birth parent might be favoured in terms of primary custody, you should still request (and be granted) visitation rights. 


Most aspects of divorce (and ideally, all aspects) are generally settled by mediation. This is when you and your former partner discuss the dissolution of your marriage and the subsequent division of shared assets. Custody arrangements are traditionally determined at this time, and while the birth parent might retain primary custody, this is not always the case. Shared custody is possible, if this can be mutually agreed upon. Alternatively, fixed visitation rights can be worked out during meditation. These custody or visitation rights (along with any financial support) will be drafted into a new parenting order, which will form the basis for your future legal relationship with your child. Given the added complexity of the situation for same-sex couples, where one party is a parent who does not have a biological relationship with the child, you might wish to have a family lawyer advise you during mediation.

Custody and visitation arrangements can be somewhat perplexing when divorcing your same-sex partner, so it's important to be aware of your rights and obligations.

For more information, contact a family lawyer in your area.