Step Parent Adoption Explained

When can a Step Parent Adopt their Step Child

With one in three marriages ending in divorce and the prevalence of de facto relationships, blended families have become very common.

If you are a step parent having the care and responsibility of a step child then you may have thought about giving your relationship some legal status.

Usually the first way to do this that occurs to a step parent is to think about the formal adoption of their step-child.

Adoption of a step child is often considered by step parents when:

• The biological parent is deceased and the deceased’s extended family does not have significant contact with the Child;
• The biological parent is not actively involved in their child’s life;
• It can be shown to be in the best interests of the Child.

It is unusual for a Court to make an Order for a step-child (or a child who is related to you) to be adopted as adoption is such a serious and final legal step.

This is partly because a Court can make a parenting order instead. A parenting order for a step-child can provide the step parent with parental responsibility for their step-child.

Adoption permanently severs the legal relationship between the child and their non-custodial parent and that parent’s family. For this reason, adoption orders in favour of a step parent are rare.

A legal relationship can be created however between a step parent and their step child without the Court having to make an Adoption Order.

The Court can make a parenting order which does give the relationship between the step parent and the step child legal status and so, a parenting order can meet the needs of both the step parent and the step child, without formal adoption having to occur.

You can read more about having a Court making a Parenting Order in our information sheet How to get a Parenting Order for a Step Child.

The adoption of a child by a step parent in Queensland is regulated by two (2) different pieces of legislation. Step Parent adoption is regulated by both the:

• Family Law Act 1975 (Federal legislation); and
  Adoption Act 2009 (Queensland State legislation).

 

Formal Requirements for a Step Parent to adopt their Step Child

There are requirements imposed by legislation that you must satisfy to be able to adopt your step child.

The Adoption Act does not enable same sex couples to apply for an adoption order of a step child.

In Qld you must be married or in a de facto relationship to adopt a step child. There are also additional criteria you must meet.

If you wish to adopt a step child, then in Qld under the Adoption Act all of the following must apply.

• You must be married or in a heterosexual de facto relationship;
• Your spouse must be the parent of the Child;
• You must have lived with your spouse for at least 3 years;
• Your step child must have lived with you for at least 3 years;
• You must firstly obtain the leave (permission) from the Family Court of Australia to commence adoption proceedings;
• Your step child must be aged at least five years and not yet have turned 17 years (or if 17 years of age, there must be sufficient time before the Child turns 18 to complete the process);
• Either you or your spouse must be an Australian citizen; and
• You must be resident or domiciled in Queensland

If you do not satisfy all of these requirements then you do not meet the basic criteria necessary to adopt your step child and it will not be possible for you to do so.

Even if you do meet all of those requirements, that is not a guarantee that a Court will make an adoption order for a step-child.

This is because the list above is only the basic criteria required by Qld law an an initial first step.

The Court will consider may other factors to make sure they are satisfied that making an Adoption Order is in the best interests of the Step Child.

If you wish to adopt your step child, you should seek legal advice. At the minimum, you also need to make sure you can answer yes to every question below:

• Are you married or in a heterosexual de facto relationship;
• Is your spouse the parent of the Step Child you wish to adopt;
• Have you lived with your spouse for at least 3 years;
• Has your step child lived with you for at least 3 years;
• Have you obtained leave (permission) from the Family Court of Australia to commence adoption proceedings (if not yet, you must obtain it);
• Is your step child at least five years of age and not yet 17 years of age (or if 17 years of age, there must be sufficient time before the Child turns 18 to complete the process);
• Are either you or your spouse an Australian citizen; and
• Are you resident or domiciled (live permanently) in Queensland.

Whether the non-custodial parent consents to the adoption taking place is also a factor given some weight by the Court.

If you do want to apply to adopt your step child, then before you can make your application under the Queensland Adoption Act, you will have to first obtain the permission of the Family Court to adopt your step child. Read more in our information sheet How do I get Family Court leave to commence Adoption proceedings.

 

More Information for Step Parents

Given it is rare for a Court to be prepared to make an adoption order for a step child, step parents should know there other ways to still give legal status to their relationship with their step child. The other options are detailed in the information sheet What are the alternatives to a Step-Parent adopting their Step-Child.

Step Parents can also make provision in their Will for the inheritance or guardianship of their step child. This is discussed more in the information sheet Wills providing for Inheritance by & Guardianship of a Step-Child.

When a parent remarries, sometimes they will want their child to use their new husbands name rather than their birth name. Read more in the following information sheets:

• Can a Parent change a Child’s Surname
• Can I use a name not on the Child’s Birth Certificate
• Can I prevent or reverse a Child’s name change
• What are the matters Considered by the Court when making an Order as to a Child’s name

 

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