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Family Law

Polyamory: Do family courts care about parents’ sex lives?

By December 12, 2017October 21st, 2021No Comments

By Gianna Huesch

A recent case in the UK has put a spotlight on parents’ sexual behaviour after a court ruled that three children would be removed from their parents’ custody and adopted out because of the impact of their lifestyle on their parenting capacity. The children were described as having “a loving relationship and attachment with their parents” but were found to be at risk of harm through neglect caused directly by them being in an open relationship, often also known as polyamory.

Although the parents denied being in such an open relationship, it was established that both were having sexual relationships with other people.  The judge said, for example, “The father had his own lifestyle outside the family home which plainly included going clubbing until the early hours as well as being involved with other people”, while of the mother the court noted that “it is plain some complete strangers have visited her house while the children were there to have sex with her.”

While the focus on parental sexual behaviour was at the forefront of this case, the court judgment “makes clear” that it was the effect of the parents’ lifestyle of polyamory on their parenting capacity that was relevant. Similar to the situation here in Australia, the English family courts are “not concerned about [parents’] private lives and how they will conduct them unless it impacts on the care of the children – which at this time was neglectful”, according to the judge in this case.

The parents’ behaviour became an issue because “social workers told the court the parents both saw other people and found it hard to supervise their children”.  The judge noted that the “mother was observed parenting ‘from the sofa’ and relying on others to keep the children safe from hazards”.

It’s estimated that up to 5% of Australians could be in polyamorous relationships, though exact figures are not available. Non-conventional relationships and custody issues appear to have been more of an issue overseas than in Australia—we could only find one passing and non-material reference to “polyamory” in family case law database searches here.

In the US, however, the experience of polyamorists has been that while living in an openly polyamorous relationship itself may not put parents on the radar of child protection services, it’s when parents are going through a custody battle that it can be made into an issue by a co-parent or by child protection services.  Much seems to depend on the degree of conservativeness of a state where cases have involved polymory, though.  In the more liberal states, when it is brought up, it is often also completely dismissed as irrelevant. 

At its crux is the problem of the inherent subjectivity of the “best interests of the child” standard. In the UK case, in what possibly goes beyond highlighting neglect per se towards judging the parents’ relationship itself, the court described the parents as having a “dysfunctional relationship”.

The UK judge said, “All of this must have been confusing for the children”. And for those choosing the lifestyle of polyamory, it certainly seems taking pains to protect the children from any resulting confusion would be the reasonable course of action. For example, in a recent news story on polyamory, an Australian dad was quoted as saying, “We only introduce the kids to our more serious partners. They definitely don’t meet every person we sleep with”.  In contrast, the UK father apparently “didn’t fully understand either why the presence of strangers at the home meeting the mother for sex was worrying”.

In the current climate of legal reform relating to same-sex relationships in Australia, legal issues around polyamory, parentage and custody could quite possibly become more salient here.  But ultimately, how many sexual partners parents have is not likely to be tallied up by judges—unless the children can be shown to be at risk of neglect or harm as a consequence of parental sexual behaviour.

Read more:

https://www.theguardian.com/society/2017/nov/30/children-removed-from-family-home-over-parents-open-relationship

Polyamory parenting in Australia:

http://www.news.com.au/lifestyle/relationships/marriage/polyamorous-australian-parents-juggling-lovers-with-family-life/news-story/ab7a40a878e77acc69361b14eedc1872

For a good discussion of the issues (US story):

https://www.psychologytoday.com/blog/the-polyamorists-next-door/201705/child-custody-in-polyamorous-families-part-5

Do you need legal assistance with a parenting matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for an initial no-obligation, cost-free consultation.

Please note that our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.

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