In Australia, remarrying or repartnering is quite common after separating from former partners/spouses. Step parent adoption is often considered in cases where one has a child with their former partner.
Step parent adoption is a kind of intrafamily adoption. It is the process of legally adopting a spouse’s child. This transfers all rights and responsibilities from one of the birth parents (and their family) to the adoptive parent (and family). The step parent who wishes to adopt must file an application along with the custodial parent of the child.
Once the process of step parent adoption is complete, the non-custodial parent will not share any legal relationship with the child. The child receives a new birth certificate that names the step parent as one of the parents.
Why Step Parent Adoption is Considered
Step parent adoption is considered to be a concrete legal step by many, which effectively legalises the de facto relationship between a step parent and step child. Furthermore, it is in the best interest of the child as it ensures that care is continually given in case anything happens to the custodial parent.
Most importantly, given the separation of the child’s parents, step parent adoption offers the support that a child needs, by making him/her feel more secure and strengthening their sense of belonging within the step parent’s family.
Step parent adoption is also considered in cases where the child’s biological parent (non-custodial) is deceased, and the deceased’s family does not have significant contact with the child.
Eligibility Criteria
Across the various states in Australia, the eligibility criteria for step parent adoption differs slightly. However, three common factors underpin the general eligibility. These factors are residence (step parent and child must be living in the same state), relationship (stable domestic relationship with partner), and consent (from all parties sharing parental responsibility).
Within NSW, the requirements for step parent adoption, and legal eligibility criteria, are stated in the Adoption Act 2000 (NSW) and Adoption Regulation 2015 (NSW).
For the child to be eligible for adoption, he/she must be: –
- Less than 18 years old, on the day the adoption is being made.
- Cared for as a child, by the step parent filing the application, if the child is over 18 years old.
Who is eligible to apply for step parent adoption in NSW?
The Court will make an adoption order in favour of the step parent of the child only if: –
- The child is at least 5 years old.
- The step parent has lived with the child and the birth parent for a continuous period of at least 2 years immediately before the application for adoption.
- All relevant and appropriate persons have given consent to the adoption of the child by the step parent (in accordance with the Adoption Act 2000).
- The Court is convinced that the adoption is ideal in the best interests of the child and better than all other legal alternatives.
All parties involved in the adoption must give consent. If the child is over 12 years of age, he/she can consent to their own adoption.
Additionally, all parties sharing parental responsibility are required to give consent. In certain cases, owing to previous court orders, grandparents may also have parental responsibility. In this case, the grandparents must also give consent to the adoption. The Court has the authority to dispense with, if needed, the requirement of consent by other parents.
Throughout the process of adoption, the most significant consideration is given to the best interests of the child. For the Court, this acts as the guiding principle in making the decision about the adoption.
In NSW, the child is required to receive counselling prior to their adoption, to ensure that the child comprehends the legal and emotional effects of being adopted by their step parent.
This adoption does not exclude the rights of the non-continuing parent (and family) to have future contact with the child post-adoption. Ideally, the non-continuing parent establishes a plan, along with the step and custodial parents, which outlines future contact arrangements. This plan can then be presented to the Court while applying for the adoption.
What are the alternatives?
Step parent adoption is not the only way to be legally recognised as a carer for the child. Some alternative methods include: –
- Parenting Orders: Parenting orders do not alter the child’s birth certificate or provide inheritance rights but provide the step parent with the authority to make important decisions in the child’s life. Parenting order is legally binding and is applied for in the Family Court of Australia.
- Parenting Plans: Unlike Parenting Orders, Parenting Plans are not enforceable by law. A Parenting Plan is an agreement between former spouses that sets out who the child is to live with. The document is an agreement regarding a child’s welfare and development.
- Parental Responsibility: The Court can exercise its authority of giving parental responsibility to a person who is not the child’s parent. This is not the same as a legal adoption, but step parents can share the same legal responsibility as the child’s parents.
Importance of Seeking Legal Advice
Because every case is different, and every family is different, it is ideal to seek legal advice that is tailored to your specific case.
Additionally, because the eligibility and process for step parent adoption differs from state to state, it is essential that you seek legal advice to understand rules that apply specifically to your state.
Most of the adoption proceedings take place in the Supreme Court and gaining legal advice from a solicitor is beneficial as they will help you navigate the adoption process. You might find the complex nature of Family Law overwhelming. Solicitors can not only help you with the process of applying for step parent adoption, but also with understanding your rights and legal responsibilities.
Please do not hesitate to reach out to our Family Law experts at JB Solicitors. We have a wealth of experience and we can ensure your legal concerns are well-addressed. Our fixed-fee pricing for Family Law will provide clear details about the costs, and we will ensure that all legal processes are taken care of without any inconvenience.
Contact JB Solicitors today to speak with our friendly and experienced family lawyers to gain a clearer understanding of step parent adoption.
