10 Apr Remarriage And Parenting Orders
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Remarriage and parenting orders need to be considered together once you have tied the knot a second time. Many couples remarry after divorce, often starting another family with stepparents, step-siblings and half-siblings.
After a divorce, many parents have parenting orders made either after a court hearing or by consent to make living arrangements for their children and decide how much time the children spend with each parent.
These orders may be changed over time as the children grow up and their needs change. Any parenting order made after 1 July 2006 can be changed with a parenting plan if both parents agree to the change.
The remarriage of one or both parents is an example of a change in circumstances that may require a change to parenting orders when stepparents become involved in the children’s lives.
What Is A Stepparent?
The definition of “stepparent” is given in Section 4 of the Family Law Act 1975:
A stepparent is a person who:
- Is not a parent of the child;
- Is, or has been, married to or a de facto partner of a parent of the child; and
- Treats, or at any time while married to or a de facto partner of the parent, treated the child as a member of the family formed with the parent
Stepparents count as a relative of the child.
Because they are often a person, other than a parent, who is “significant to the care, welfare and development of the child,” they are able to apply for parenting orders.
Stepparents And Parental Responsibility
Parental responsibility means all the duties, power, responsibilities and authority that a parent has in relation to a child.
All parents have parental responsibility for their children. The court works on the presumption of equal shared parental responsibility, meaning that both parents share parental responsibility for their children.
This can be changed with a court order, which is only done in exceptional circumstances.
Parental responsibility does not change with separation, divorce or remarriage.
Stepparents, however, do not automatically have parental responsibility towards their stepchildren.
This means that they cannot usually authorise any medical care, obtain school reports or other documents, sign school forms or apply for passports. An exception would be in an emergency, for example, if parental consent was needed for an emergency medical procedure.
These responsibilities would ordinarily remain with the child’s biological parents.
However, making new parenting orders, either in court or by consent, can give a stepparent parental responsibility.
Stepparents, Remarriage And Parenting Orders
Stepparents can have quite an influence on changes to a child’s care and day-to-day routine, including arrangements like custody changeovers and spending time with the other parent.
Parents may find it useful to obtain consent orders or parenting orders after remarriage.
Stepparents can feature in parenting orders and can apply for parenting orders as they are a:
significant person concerned with the care, welfare and development of the child.
Parenting orders can deal with any aspect of care, welfare and development of the child, including the division of parental responsibility.
When parental responsibility is shared between a child’s parents, as in most cases, the parents must consult with each other to reach an agreement on any major long-term decisions.
Stepparents can assume parental responsibility for a child, or for certain aspects of a child’s care, through parenting orders. This would allow them to make decisions on the child’s behalf, in consultation with the biological parents.
Parenting orders for stepparents may not give them shared responsibility like the biological parents, but may instead pertain to specific issues.
An example might be a court order that allows the stepparent to sign forms for the child’s school or to take an active role in the child’s cultural or religious upbringing.
If all parties – the biological parents and the stepparent – consent to the proposed orders, parenting orders do not need to be made after a court hearing but can be made by consent.
If there is a court hearing to decide whether parenting orders will be made in favour of the stepparent, the court will base their decision on an evaluation of the child’s best interests.
Instead of parenting orders or consent orders, some families may prefer to use parenting plans. These are not legally binding but, like parenting orders, they deal with any aspect of the care, welfare and development of the child.
As they can be changed at any time with both parents’ consent, parenting plans can be updated after a parent’s remarriage to include stepparents.
Stepparents And Child Support
It may be important to think about child support when considering remarriage and parenting orders.
Child support is usually managed by the Department of Human Services (DHS). This is the government department that conducts a child support assessment to determine how much one parent pays to the other.
Parents who pay or receive child support must inform DHS of certain changes in their lives. One of these is remarriage.
However, child support is calculated based only on the parents’ income. Any stepparents’ incomes will not affect a child support assessment.
The Department of Human Services cannot make a stepparent pay child support. This can only be done by court order.
The primary duty to maintain a child still rests with their parents.
The court will only make an order for a stepparent to pay child support to their stepchild if they are satisfied that the stepparent has a duty to maintain the child.
Stepparents paying child support is covered in Section 66M of the Family Law Act 1975.
When determining the outcome of an application for a stepparent to pay child support to their stepchild, the court will consider the following factors:
- The length and circumstances of the marriage to, or relationship with, the relevant parent of the child
- The relationship between the child and the stepparent
- Current or past arrangements for the maintenance of the child
- Any special circumstances which, if not taken into account, would result in injustice or undue hardship to any person
Unlike child support, spousal support usually ends when a person remarries.