The rights of non-biological parents fell under the spotlight in the Grahamstown High Court yesterday where a same-sex couple and a biological father are battling for interim custody rights over their two-year-old child.
According to court papers the Grahamstown couple separated late last year. Initially, the child lived mostly with his non-biological mother, Katy, while his biological mother, Jenny, moved residence.
But, now the biological father, Michael – who Katy claims has played a negligible role in the child’s life – wants primary custody of the child and this has the support of his biological mother.
The three may not be identified, and the names used are not their real names.
In April, Katy approached the Children’s Court seeking an order to formalise her parental responsibilities and rights and grant her care and contact with the child.
The proceedings were postponed to October so she could be evaluated for her suitability to exercise the parental rights she sought.
But Michael, who lives in the Western Cape, together with Jenny, formulated a parental plan which made him the child’s primary carer in a way that Katy said would cut her completely out of the picture.
Michael and Jenny asked the Children’s Court to endorse the plan and wanted it to order Katy to hand over the child almost immediately.
The Children’s Court rejected Michael’s attempt to immediately become the primary carer, instead referring the matter to mediation and allow for further expert investigation of all the parties.
In the meantime, the court said it would be in the child’s best interest to remain in Katy’s care and extended an earlier agreement between the two women that he live primarily with her in the interim.
The biological parents have now resorted to the high court to review the Children’s Court decision.
Pending the review, they want an urgent interim order suspending its decision and asked that the child, within 48 hours, be placed in Jenny’s care until such time as he can join his father, Michael, in the Western Cape.
Advocate Sarah Sephton of the Legal Resources Centre argued for Katy yesterday that the parents were trying to subvert the proceedings in the Children’s Court.
She said the courts had already ruled that where two mothers intended to raise a child together, and the non-biological mother played the role of a parent to the minor child, her parental rights should be recognised.
She said courts had also acknowledged that biological relationships were not the exclusive determinant of the existence of a family.
“This recognition has been particularly important for gays and lesbians, who are often ill-served by rigid definitions of parenthood and, on the dissolution of their relationships, risk finding themselves navigating court systems which are unprepared to recognise their status.”
She said the little boy’s biological parents sought to “privilege biology over an ongoing parental relationship with” the child which was out of step with his best interests.
Advocate Izak Smut, SC, for the biological parents, argued that the Children’s Court had refused to recognise a parenting plan that was entirely in line with expert recommendations.
Judges Judith Roberson and Thamie Beshe indicated they would give judgment this morning.