Adoption is a social, psychological and legal process through which a child is given the legal status of a child within a family other than their birth family.
This option can only be considered by stepparents in exceptional circumstances, for example, when the biological parent is deceased or not actively involved in the child’s life or it can be shown to be in the best interests of the child. Generally, an Adoption Order will only be granted when Parenting Orders are not sufficient to protect the welfare of a child. This can be a lengthy and difficult process and generally Parenting Orders are the more appropriate solution.
Adoption will bestow full parental responsibilities upon the stepparent equal to that of a biological parent.
You will need to be married or living in a de facto relationship for a minimum of 2 years. It is also important to obtain leave (or permission) from the Family Court, otherwise difficulties could arise whereby the non-custodial parent will continue to have rights under the Family Law Act.
The Family Court may grant leave for adoption proceedings if it considered to be in the child’s best interests.
When determining a ‘child’s best interests’, the Court will consider the following:
- Benefit of a child having a meaningful relationship with both parents;
- Need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
- Views of the child;
- Nature of the child’s relationship with parents, grandparents and other relatives (includes stepparents);
- The extent to which the parents have been involved in the child’s life;
- The extent to which the parents have maintained the child;
- Likely effect on the child;
- Practical difficulties;
- The capacity of the parent, grandparent or other relative to provide for the needs of the child, including emotional and intellectual needs;
- Maturity, sex, lifestyle and background of the child and parents;
- The parents attitude to the child and responsibilities of parenthood;
- Right to enjoy Indigenous Australian culture;
- Any family violence.
If the court grants leave for adoption proceedings to commence on the basis of it being in the child’s best interests, the adoption extinguishes the parental responsibility of the other parent. Therefore, the non-custodial parent ceases to be the child’s legal parent and the adoptive parent becomes the child’s legal parent. In addition, the child ceases to be a child of the previous marriage or de facto relationship and any previous Parenting Orders will no longer be in force.
However, it is intended under adoption legislation that Adoption Orders will rarely be granted to a relative or step-parent. It is now generally recognised that the preferred alternative for people in this situation wishing to adopt is to apply for a Parenting Order from the Family Court.
Adoption legislation varies in each State and Territory. You should seek independent legal advice in your State or Territory if you wish to pursue this option.