With blended families very common these days, so is being a step-parent. But what happens when a step-parent wishes to take a further step and adopt their step-child? And how difficult is the process of step-parent adoption?
Legally adopting a child from your partner’s previous relationship, who you already take care of, falls into the category of “intrafamily” adoptions, which is the adoption of a child by a step-parent or a relative. It’s the formal process of transferring parental responsibility from the child’s birth parents (or carers) to the prospective adoptive parents or carers. Parental responsibility is the term which refers to the short and long-term rights, responsibilities and duties that parents owe their child (for example regarding health, school or religion).
Similarly to the situation under the Family Law Act, when courts are determining adoptions they must have the child’s best interests as their paramount consideration.
Although most child-custody related matters are determined by the federal Family Law Act, matters regarding adoption are actually legislated by the States and Territories. In NSW, for example, intrafamily adoption is governed by the Adoption Act 2000 and the Adoption Regulation 2015, and the applications are heard in the NSW Supreme Court. In Queensland, the relevant legislation is the Adoption Act 2009, and the applications are heard in the Childrens Court.
Nevertheless, most of the legislation regarding step-parent adoption requires that parties first obtain “leave” (permission) of the Family Court under the Family Law Act to initiate step-parent adoption proceedings.
Step-parents sometimes decide to proceed with step-parent adoption because it can provide their step-child with more certainty: the child can see this as an indication of the step-parent’s desire to be a permanent part of their lives. It can also provide their partner with reassurance of their total commitment to the child.
As a step-parent who adopts a child is thereafter treated as the child’s birth parent in the eyes of the law, the level of legal responsibility changes significantly. For example, the step-parent becomes financially responsible for the child until age 18. The parental responsibility held by anyone else except the step-parent’s partner is extinguished, and the ties with the person whose parental responsibility was extinguished are usually severed. And even if the step-parent and their partner separate at a later date, the step-parent remains the child’s parent under the law, with all continuing rights and responsibilities.
The child’s birth parents need to consent to the adoption order, but if the child’s parent refuses, then the step-parent needs to apply to the court to dispense with the consent. Sometimes, the other parent can’t be located, and in that case it’s necessary to show that all reasonable attempts were made to locate them. If even the slightest doubt exists that a complete attempt has been made to locate the parent, the court will not agree to dispense with the need for consent.
Step-parent adoption is very difficult if the birth parent refuses to give consent. Courts are typically reluctant to revoke a birth parent’s parental responsibility in favour of a step-parent unless there is very good reason, because of the interference in both the child and the birth parent’s life.
For this reason, even when a birth parent has not been involved in the child’s life, obtaining a parenting order is often easier and less expensive than attempting to revoke the birth parent’s parental responsibility via adoption. It’s possible to instead enter into parenting orders with the parties who have parental responsibility for a child, with their agreement. Without their agreement, application needs to be made to the family court, but this is usually easier to achieve than the complete severing of the birth parent’s legal rights that occurs through adoption. Parenting orders can give all of the parental responsibility to one parent, making it possible for them and the step-parent to make all decisions relating to the children without consultation with the other parent.
However, if adoption is still the preferred choice, a step-parent can make an application for adoption provided they meet certain requirements and prerequisites. These vary, for example in Queensland, one of the requirements is that the step-parent must have lived with their partner and the child for at least three years. We recommend that you seek legal advice to ascertain whether it will be appropriate for you to apply to adopt in your circumstances.
You can read more about step-parent adoption here.
Are you a step-parent and need advice regarding the legal process of adopting a child or obtaining parenting orders? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance, on (02) 6223 2400, so we can help you achieve the best possible outcome.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.
