Most people think of adoptions as occurring in the traditional sense where a young child is adopted by a couple who are unrelated to him or her, those people become his or her “parents” and the child grows up with little or no knowledge of his or her biological parents. This model of adoption still occurs but adoptions are commonly becoming more “open” so that the child has an ongoing relationship or knowledge of his or her biological parents.
Adoption is also used as a tool by family members to assume legal rights for children within their family or by step-parents to secure legal rights in respect to their step-child. This blog deals with the last situation.
If you are a step-parent wanting to secure a legal basis for your relationship with your step-child, adoption is one option but there is a mix of legal tools that you can use to secure your new family arrangement.
When an adoption order is made the natural birth parents of the child are wiped clean from the child’s legal history and the child is viewed from then on as being the ‘birth child’ of the adoptive parents. For this reason the step-parent and his partner, one of the child’s biological parents, must make a joint adoption application.
It is important to understand the effect of this “wiping clean”. It means that legally the child’s other biological parent and extended family on that side are no longer related to him or her—they become, in effect, strangers in the eyes of the law. It means that they do not have any legal obligations or moral obligations towards the child (such as to provide for them in wills or pay child support). A result of this may be that the child suffers a loss of identity and heritage as well as the relationship they had with their parent or extended family.
The biological parent who is not seeking the adoption order must consent to the adoption or the Court will hold a hearing to decide whether their consent should be dispensed with. The circumstances in which the law allows the Court to dispense with the parent’s consent are limited. If the parent has chosen to have little contact with the child and little involvement in decision making about the child this can go against them in any decision about whether their consent to an adoption is required.
The process from making an application for an adoption to the making of a final adoption order is a long one. During this time, a lawyer will likely be appointed to represent the child in the proceedings and a Social Worker will be asked to complete a report. This process can be very invasive and extensive.
What other tools, besides adoption, are there for step-parent families who may wish to secure legally a step-parent’s relationship with his or her step-children?
The step-parent could be appointed a “testamentary guardian”. This is an easy, fast and cheap way of granting a step-parent legal rights for a child in the event of the child’s parent dying. A testamentary guardian is a person named in a parent’s will as the guardian of your child if the parent dies. If a child’s step-parent was appointed a testamentary guardian, they would have the right to make decisions (in consultation with any other guardian) about the big matters in the child’s life such as changes to their name, medical, religious or educational decisions and whether the child may relocate to live in a new area. Their guardianship status would last until the child turns 18 years old or marries (if under 18 years of age).
The step-parent could apply to be appointed by the Family Court as an “additional guardian” of the child. This would give the step-parent the rights and responsibilities of a guardian to be involved in making decisions about the child’s welfare. Unlike a testamentary guardian, a guardian appointed by the Court becomes a guardian immediately, not upon the death of their partner (the child’s parent). In some cases, if both of the child’s parents agree, a step-parent can be appointed a guardian by making a simple application to the Registrar of the Court. In other cases, an application will need to be considered by a Family Court Judge after the Judge has given the child’s parents and any other guardians the opportunity to express their view about whether the appointment should be made. The basis on which a Judge decides whether a step-parent should be appointed an additional guardian is whether this would be in the child’s best interests.
The step-parent could make an application for a “Parenting Order” to set out what the child’s care arrangements should be and what rights and responsibilities they have in respect to those care arrangements. Such an order can formalise the reality of the child’s new family structure and care arrangements. If the child’s parents agree, this can be a straight forward process. If not, a Judge will need to decide whether such an order is in the child’s best interests.
It is important to find the right tool or the right mix of tools for your particular family and circumstances. Each of these options will be suited to different circumstances. To find out whether you need to take any of these steps at all, talk with a specialist family lawyer.
To have us help you to find the right option for your family, email us at email@example.com.