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Blended Families. Do I need to adopt?

It can be difficult to obtain court approval for step-parent adoption. So what are some other options available for step-parents who want to show that they’re totally committed to their step-children’s lives and want to create a sense of belonging for all members of their family?

What is adoption?

Adoption is the legal process where a child joins and becomes a recognised member of a family. In these circumstances, adoptive parents assume all legal rights and responsibilities of biological parents, which has the effect of severing the legal rights and responsibilities between the child and their birth parent and relatives.

Is there a difference between adoption and step-parent adoption?

In practice, no. Step-parent adoption is simply the name given where a step-parent wishes to adopt their partner’s child from a previous relationship. Court approval is required for step-parent adoption. This approval is becoming more difficult to obtain, as it is now expected that the welfare and interests of a child can be better met with a parenting order made by the Family Court of Australia.

What is the difference between a Parenting Order and Adoption?

There are several differences between a parenting order and a formal adoption, which include:

An adoption order:

o   Is permanent;

o   Does not expire when a child turns 18;

o   Means that the birth parent ceases to be the child’s legal parent and the adoptive parent becomes the child’s legal parent; and

o   Severs the legal relationship between the birth parent’s extended family and the child, and grants rights to the step-parent’s extended family.

– This means that the child will not inherit from their birth parent unless they are specifically named in their will.

 

A Parenting Order:

o   Can be changed;

o   Expires when the child turns the age of 18.

– At the age of 18, a child may, however, apply to be adopted without the need for any other consent.

o   Can allow for the step-parent to have equal shared parental responsibly for the child, which means they will legally able to be involved in making long term decisions concerning the child’s health, education and religion;

o   Does not mean that the child will inherit automatically from the step-parent and does not affect rights of inheritance from their birth parent.

– For this reason it is important to name the child in the step-parent’s will.

o   Does not change the birth parent’s extended family’s legal relationship with the child.

o   Preserves the child’s legal ties to both birth parents and their families while acknowledging the child’s new situation.

 

When would adoption be likely?

In the absence of exceptional circumstances warranting an adoption order being made, the Family Court may not grant leave for a step-parent adoption. the Court may instead grant parenting orders, which can include arrangements about where and with whom a child lives, and with whom a child spend times with and communicates.

 

In order for an adoption order to be made by a Court, a Judge must be satisfied that:

  1. A parenting order made by the Family Court would not adequately provide for the welfare and interests of the child;

 

2.  Exceptional circumstances exist to justify an adoption order being made.

– An example of this may be where a biological parent has died or has been totally absent from the child’s life for many years. Usually a combination of major circumstances is required to meet this requirement; or

 

3.  An adoption order would make better provision for the welfare and interests of the child than a parenting order made by the Family Court.

 

Things to keep in mind when assessing what would be best for the child

 

  • An adoption order may enhance a child’s sense of belonging in the stepfamily but at the expense of severing ties with the birth parent’s family.

 

  • The legal security provided by parenting orders may sufficient.

 

  • An adoption order in itself will not necessarily enhance a child’s sense of belonging. A key factor is the attitudes of the adults involved and their willingness to put the child’s best interests first and above their own.

 

 

By Nicholes Family Lawyers

 

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