Family law matters are complex reflections of complex modern family structures. Approximately 89,164 marriages were registered in Australia in 2021; of those, 56,244 couples got divorced. Australian couples, separated or divorced, constitute a wide range of family arrangements. Some couples share biological children, while others share step-children. Oftentimes, parental rights and step-parent’s rights are a topic of controversy amongst many separated Australians around the nation. If you are a step-parent, it is vital that you are aware of where you stand. What are your rights and responsibilities as a step-parent?
Defining “Step-Parent”
To better understand your rights and entitlements, we first need to understand the legal definition of the term “step-parent”. According to Section 4 of the Family Law Act 1975 (Cth) (“the Act”) a step-parent is a person who:
(a) is not the biological parent of the child;
(b) is, or has been, married or in a de-facto (same-sex couples included) relationship with a parent of the child;
(c) and while in a relationship with a parent of the child, treats the child as a member of the family with that parent.
Legal Responsibilities of a Step-Parent
As a step-parent, you have the authority to make decisions concerning and affecting the care, welfare and proper development of a child. However, it is important to note that step-parents do not automatically have legal parental responsibility. This means that a step-parent cannot legally authorise medical care, sign school forms, apply for passports and so on. There is an exception for emergency medical situations when you might be asked to give consent to a procedure if neither of your step-child’s biological parents are available.
Parenting Orders for Step-Parents
Should you want to gain parental responsibility for a child as a step-parent, you will need a parenting order or consider adoption. It is always advised that you seek legal advice from an experienced family lawyer regarding parental responsibility as a step-parent. A parenting order will allow you to:
- Go to school events that parents are invited to;
- Receive school notices, reports and any other teacher-parent correspondence;
- Acquire information about your step-child’s health and education;
- Pick a step-child up on behalf of a biological parent;
- Spend time and communicate with a step-child even if you separate from his or her biological parent.
Note: It is important to note that step-parents are only granted parenting orders in special circumstances – for example, when both biological parents aren’t available/fit to parent or there are concerns for a child’s welfare.
Adopting A Stepchild
Adoption is another path that is available to step-parents. Of course, this will require the consent of both biological parents, unless one of those parents has passed away. If you adopt your step-child, you become your step-child’s legal parent. Adoption laws vary between states and can be complex.
What are my Custody Rights as a Step-Parent?
Under Australian law, if a step-parent and a child’s biological parent are separated or divorced, a step-parent does not automatically have the entitlement to spend time with their step-child or to commence court proceedings. However, a parent and step-parent can reach an informal agreement or enter into a Parenting Plan. If you are a step-parent seeking a court order for time with a step-child, you must first obtain leave of the Court to start proceedings, or to join existing proceedings. Section 65C of the Act provides means for any person or step-parent concerned with the care, welfare or development of a child to be able to commence or join proceedings concerning the child they have a concern about. Some of the factors that may be taken into consideration include the form of Orders being sought by you, the step-parent, and the history of your relationship with the child.
Will my Step-Child Inherit my Assets?
If you want to provide for your step-child after your passing, you must name them in your will. If you have not adopted your step-child and you die without a will, your step-child will not be entitled to any of your assets. However, if you adopt your step-child and die without a will, your step-child has the same entitlements to your property as any of your biological children.
Truth be told, this article only covers a mere fraction of everything a step-parent needs to know about their legal rights and responsibilities. As you can see, this is a topic that is incredibly complex and made up of a vast number of different layers based on individual circumstances. If you have any questions or concerns as a step-parent, it is vital that you get in touch with one of our expert family lawyers who will be able to provide you with legal advice that is specifically tailored to your situation. Please give us a call on (03) 9793 7888 or send us an email at admin@justfamilylaw.com.au.