Can I Adopt My Partner’s Children?
In the past, adoption was considered to be an appropriate solution for integrating step-children into a new marriage. Now, adoption in these circumstances is not always viewed as being in the best interests of the child.
In 1984, the Adoption Act introduced major changes to reflect the shift towards the concept of the ‘best interests of the child’. The adoption of children by a step-parent is now only available where guardianship and custody orders are:
- Unable to deﬁne the rights and responsibilities of a relative or step-parent.
- Unable to provide legal security for the child and the parent of the child.
Family Court orders rather than adoption
It is now expected that orders through the Family Court should be the main option in cases where adoption orders would have been made in the past. This reﬂects the consideration that in all but a few cases, the welfare and interests of a child raised by a relative or step-parent are better met by a Family Court order than by an adoption order.
The Family Court is responsible for granting parenting orders, which include living arrangements and access orders, and seek to preserve the child’s legal ties to both birth parents and their families, while acknowledging the child’s new situation.
What is the difference between adoption and Family Court orders?
There are four key differences between adoption and orders issued by the Family Court:
- The order expires – the parenting order expires when the child turns 18, however a child may apply to be adopted without the need for any other consent. In contrast, an adoption order does not expire when the child turns 18.
- Name change – a child’s name can be changed to that of the step-parent, with the permission of the biological parent. You will have to apply to the Registry of Births, Deaths and Marriages, which will alter the child’s name on their birth certificate. An adoption order is not required for this.
- Inheritance rights – with adoption, the biological, non-custodial parent ceases to be the child’s legal parent. This means that the child will not inherit from the biological parent unless speciﬁcally named in the will. With a parenting order, the child will not inherit automatically from the step-parent and will retain the automatic right of inheritance from their other parent. For this reason it is important to name the child in your will.
- Extended family – with parenting orders, the extended family’s legal rights remain intact. This is in contrast to an adoption order, which severs the legal relationship between the non-custodial parent’s extended family and the child, and grants rights to the applicant’s extended family.
If you still want to adopt
The court will only allow the adoption where special circumstances exist. For example, where the biological parent has died or is totally absent from the child’s life for an extended period.
The biological (non-custodial) parent’s written consent is always a prerequisite for the adoption. Their wishes regarding access will be taken into account. Also, your suitability will have to be assessed. You need to have been married or living in a stable de facto relationship for a minimum of two years. With regard to the latter, you will be required to provide adequate proof.
Obtaining leave from the Family Court
It is important to note that if you decide to pursue adoption, then obtaining Leave from the Family Court is required. The Family Law Act states that the Family Court must grant leave for adoption proceedings when it believes it is in the child’s best interests.
If such leave is not granted from the Family Court, rights under the Family Law Act may continue to exist, irrespective of the adoption order. For example, the Family Court would still have jurisdiction to make an access order in favour of the biological parent.