Who Is Entitled to Parental Responsibility? Biology, Caregiving, Intention and the Family Law Act 1975 (Cth): A Jurisprudential Feminist Analysis

Abstract

After explaining why considerations about parental entitlements must be factored into any legal regime purporting to allocate parental responsibility, the paper examines three possible grounds for the allocation of parental responsibility: biological connection between an adult and a child, relationship of caregiving between an adult and a child, and an adult’s intention to parent a particular child. The article argues that while biology is a morally irrelevant ground for distributing parental responsibility, caregiving and intentionality are not, and that they usefully inform us on the circumstances under which certain adults are morally entitled to parental responsibility over particular children. The article then goes on to evaluate whether or not the Family Law Act 1975 (Cth) sets up a morally defensible regime of parental responsibility allocation. It does so by assessing the extent to which the Act supports biology, caregiving and intentionality as grounds for identifying who has parental responsibility over children. It concludes that the Act falls well short of implementing a morally sound parental responsibility regime. The analysis is jurisprudential in nature and largely informed by feminist literature.

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