02 May Step-Parent Adoption
Nectaria is an Associate Solicitor, practising primarily in family law matters, but also in conveyancing, Wills and Estates and Crime. Nectaria’s experience can help you understand how the law will apply to your individual situation. Nectaria has completed a Bachelor of Laws with a Bachelor of Arts majoring in Criminology and graduated from Macquarie University with second-class honours.
Step-parent adoption is the process by which a person becomes the legal adoptive parent of their spouse’s child.
It is quite common for a person to re-partner or remarry after separating or divorcing from their previous spouse. When they have children from a prior relationship, the new partner, whether they are a de facto or married partner, becomes the step-parent of the children.
When a person remarries, the new spouse does not automatically become the adoptive parent of any children from a previous relationship. Depending on parenting arrangements with the former partner, the child’s parents may still share custody.
This does not mean that the step-parent cannot take on any legal responsibility for the child.
Many families may consider step-parent adoption to consolidate the step-parent’s and child’s relationship and give the step-parent the same legal parental responsibility as the birth parent, their spouse.
Step-parent adoption permanently ends the legal relationship between the child and their non-custodial parent – that is, the parent who they do not live with. This means that they will lose their automatic right to inheritance, although the non-custodial parent may include the child in their will.
Eligibility For Step-Parent Adoption
To begin the process of step-parent adoption, the step-parent and child must first be eligible.
Step-parent adoption works differently in different Australian states.
In New South Wales, the child must have lived with the step-parent for at least two years in order to the step-parent to be eligible to adopt them.
All parties involved in the adoption must have each other’s consent. This means that the non-custodial parent must agree to the step-parent adoption and that they must be in full understanding of the legal consequences of step-parent adoption.
It is possible for other people to also have parental responsibility. For example, a grandparent may have been given parental responsibility for their grandchild in an earlier parenting order. If this is the case, they must also give consent to the adoption of the child by the step-parent.
However, the court has the authority to dispense with the necessity for the other parent’s or anyone else’s consent.
In all cases, the adoption must be in the best interests of the child. This means that the court must determine that being adopted by their step-parent is the best option for the child’s care, welfare and development both now and in the future.
The best interests of the child are given significant consideration.
Children over 18 years old can also be adopted, as can children aged 17, close to turning 18. However, children over 18 can only be adopted if they were cared for as a child by the step-parent.
In New South Wales, children aged over 12 can consent to their own adoption. Notice of this consent can be given to the non-custodial parent.
The child being adopted is required to receive registered counselling prior to their adoption. This is to ensure that they understand both the legal and emotional effects of being adopted by a step-parent.
Once they have been adopted, the child will receive a new birth certificate that names the step-parent as one of their parents. The previous birth certificate will no longer be valid.
The adoption application will be assessed by the court and the child will be adopted by their step-parent if the step-parent is eligible, the necessary people give their consent and the adoption is found to be in the child’s best interests.
Alternatives To Adoption
Adopting their step-child may not be the solution for everyone. There are other ways to be legally recognised as a person who cares for the child and is an important person in their life.
The main alternatives to adoption are parenting plans, parenting orders and orders for parental responsibility.
Parenting plans signed and dated documents that set out how a child or children are to be cared for by their parents or anyone else with parental responsibility. Unlike court orders, parenting plans are not enforceable by law, although they can have a strong influence in future court hearings.
One parent might choose to include their new spouse, the step-parent, in their parenting plan by, for example, stating that they might pick up the child for custody changeovers, or accompany the child at school events.
Parenting plans can only be made and changed with the consent of both parents of the child. They should be clear and concise but can go into as much detail about the parenting routine as desired.
Parenting orders are made in court after an initiating application has been filed by one party. They can deal with any aspect of the care, welfare and development of the child and are typically used to resolve parenting disputes.
An application for parenting orders may result in court orders about parental responsibility.
Parental responsibility means the authority and responsibility that, by law, a parent has in relation to a child. Parental responsibility does not stop with separation, divorce or remarriage unless there is a court order that specifies it so.
The court can make orders on parental responsibility in favour of a person who is not the child’s parent, which means that a step-parent can be given parental responsibility. This is different from a legal adoption, but depending on the level of parental responsibility, a step-parent can have similar responsibilities to any other parent.
The latter two options, parenting orders and parental responsibility, can also be made by consent if the parents and step-parent (or step-parents) all agree about the orders they are seeking.