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Step-parenting and the law

Step-parenting and the law

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Am I a step-parent?

According to the Family Law Act 1975, you're a step-parent if you:

  • are not a biological parent of the child
  • are or were married to, or a de facto partner of, one of the child's biological parents
  • treat the child as a member of the family you formed with the biological parent, or did so while you were together.

De facto relationships include same-sex couples.

What are my step-parenting legal responsibilities?

Legal parental responsibility means being in charge of all major and long-term decisions relating to a child.

As a step-parent you don't automatically have legal parental responsibility for your stepchild. This means you can't legally authorise medical care, apply for passports, sign school forms and so on.

There's an exception for emergency medical situations when you might be asked to give consent for a procedure if neither of your stepchild's biological parents is available.

If your partner dies, you don't automatically get parental responsibility for your stepchild. Parental responsibility passes to your stepchild's surviving biological parent.

Even after biological parents separate, they still have shared parental responsibility. This means they're jointly responsible for making big decisions like where their children go to school and how their children are cared for until they're 18 years old. Sometimes a biological parent can ask the court for sole parental responsibility. The court decides depending on what's in the child's best interests.

How can I get parental responsibility as a step-parent?

As a step-parent, you can get parental responsibility for your stepchild through a parenting order or adoption.

It's a good idea to get independent legal advice about the best choice for your blended family and the law in your state or territory.

Parenting orders
A parenting order can give you parental responsibility, meaning that you have all the responsibilities and authority of a biological parent.

You can also get parenting orders for specific arrangements. For example, you can get parenting orders that allow you to:

  • get all school notices, reports and any other correspondence that goes to parents
  • go to all school events that parents are invited to
  • get all information about your stepchild's education and health
  • pick up your stepchild from the other parent on behalf of the biological parent
  • spend time and communicate with your stepchild if you separate from his biological parent.

A court can make a parenting order:

  • when the people involved agree on the arrangements - this is called a consent order
  • after a court hearing or trial, during which the court decides what's in the child's best interests.

Step-parents are granted parenting orders only in very special circumstances - for example, when the biological parents aren't available and there are concerns for the child's welfare.

Only a court can grant an adoption. Courts usually grant adoption only when parenting orders aren't enough to protect a child's welfare.

If you adopt your stepchild, you become your stepchild's legal parent. You can adopt your stepchild only in certain circumstances - for example, when his biological parents have died or aren't actively involved in his life, or if the court thinks it's in your stepchild's best interests.

Will I need to pay child support as a step-parent?

Only a court can order you to pay child support for a stepchild. The Australian Government Department of Human Services can't order you to pay child support for a stepchild.

Your duty to pay child support for a stepchild always comes after the duty of the child's biological parents to support him.

When deciding whether you should pay child support as a step-parent, the court would look at things like:

  • whether your stepchild gets a proper level of financial support from her biological parents
  • how long you and your stepchild's biological parent were in a relationship or marriage and what kind of relationship it was
  • what kind of relationship you have or had with your stepchild
  • how your stepchild was financially supported during your relationship with her biological parent.

The court also looks at any special circumstances that, if they're not taken into account, could make life hard for anyone involved in the situation.

Visit Department of Human Services - Child support for more information.

What about step-parenting custody rights?

If your partner - that is, your stepchild's biological parent - dies, you can ask the Family Court to allow you to spend time and communicate with your stepchild. You can also ask to have your stepchild live with you.

But if your stepchild's surviving biological parent wants to and can provide proper care for your stepchild, the court will first aim to make sure that your stepchild has a meaningful relationship with his biological parent. The court will decide based on what's in your stepchild's best interests.

If your stepchild's other biological parent has died, your partner might want to ensure that you're appointed as your stepchild's legal guardian. Your partner can do this in a will, although it isn't binding. If there's a dispute over custody and guardianship, the Family Court will decide.

Visit the Family Court of Australia for more information.

What happens with inheritance?

You don't have to include stepchildren in your will. But if you want to provide for stepchildren, you must name them in your will.

If you don't name stepchildren in your will, they can contest your will after you die, but they'd succeed only in limited circumstances.

Dying without leaving a will is called intestacy.

If you adopt your stepchild and die without a will, your stepchild has the same entitlements to your property as your biological children.

If you don't adopt your stepchild and die without a will, your stepchild won't be entitled to anything.