Stepparent Rights and Family Law in Australia

Updated on April 26, 2024

    Profile picture of Jessica Adamovich family lawyer in Sydney

    About the Author

    Jessica Adamovich

    Growing up, Jessica was always surrounded by lawyers, including her father, elder sister and many family friends. She did her year 10 work experience at the Drug Court with her sister, which was an eye-opening experience.

    Growing up, Jessica was always surrounded by lawyers, including her father, elder sister and many fa... Read More

    Key Takeaways

      • Unless a court order says otherwise, a stepparent doesn’t have legal parental responsibility for a child.

      • Stepparents can provide consent for an emergency medical procedure if necessary, however, they cannot legally sign school forms or apply for passport documents for a child.

      • A stepparent doesn’t automatically get parental responsibility when they marry the biological parent of a child, however they can gain legal parental responsibility via parenting orders or adoption.

    Stepparent Rights

    Families come in all shapes and sizes, and stepparents are a common component of many families. A stepparent can play a vital role in the life of a child and can even develop a relationship with their step child which is just as strong and meaningful as the child’s relationship with their biological parents.

    However, while a stepparent can be such an important part of a child’s life, they are limited in the authorities and legal responsibilities they have towards a step-child. In this piece, we’re going to discuss these legal responsibilities, stepparent rights, and how a stepparent may gain parental responsibility, as well as what happens when a stepparent and the biological parent of a child split.

    If you’re a stepparent looking to understand your rights and options or you’re a parent who is in a relationship with a new partner, we may answer some helpful questions for you.

    What is a stepparent?

    Australia’s family law system acknowledges stepparents in its key legislation – the Family Law Act 1975 (Cth). According to section 4 of the Act, a stepparent is a person who in relation to a child:

      • Is not a parent of the child; and

      • Is, or has been, married to or a de facto partner (within the meaning of section 60EA of the Act) of, a parent of the child; and

      • Treats, or at any time while married to, or a de facto partner of, the parent treated, the child as a member of the family formed with the parent.

    People involved in same sex or heterosexual relationships can be stepparents.

    While many stepchildren and the child’s biological parents may treat the stepparent like they are a biological parent, stepparents do have some limitations around their authority and responsibilities, namely around parental responsibility.

    What is parental responsibility?

    Parental responsibility relates to the decisions made by parents for their children. The Family Law Act defines parental responsibility as “all the duties, powers, responsibilities, and authority, which, by law, parents have in relation to children.”

    As a parent you will be required to make many different decisions for your child that will affect their future. These decisions must be made with the child’s best interests in mind. Decisions for a child can be day to day decisions, such as what a child will eat, wear and their activities for the day, or long-term issues, such as where the child will go to school, their religion or culture, issues affecting their health and even their name. These long-term issues need to be made together by both parents – if both parents have parental responsibility.

    Biological parents in Australia automatically have equal shared parental responsibility, even when they separate or divorce. The presumption of equal shared parental responsibility can only be rebutted if it is believed to be in the child’s best interests, as the presumption operates around the fact that the parents having equal shared parental responsibility is in the child’s best interests. There must be reasonable grounds for equal shared parental responsibility to be removed and can only be done so by court order.

    Does a stepparent have legal parental responsibility?

    Unless there is a court order stating otherwise, a stepparent does not have legal parental responsibility – even if their partner, one of the biological parents, passes away, instead the surviving biological parent will have parental responsibility.

    While a stepparent often does carry out many parenting duties and may be seen as a parent by the child, without legal parental responsibility they are limited in some of the decisions they can make for or on behalf of a child.

    For example, without parental responsibility, a stepparent cannot legally sign school forms, apply for passport documents, obtain birth certificates of the child, or authorise medical care.

    There is one exception in the case of emergency medical situations – a stepparent may be able to provide consent for a procedure or type of care to be administered to a child in the event of an emergency and if the stepchild’s biological parents are not available.

    Can a stepparent get legal parental responsibility?

    While a stepparent doesn’t automatically assume parental responsibility, even upon marrying the biological parent of a child, they can take steps that could see them gain parental responsibility.

    There are two different avenues that a stepparent could take to get parental responsibility, these are:

    Each of these options requires a court’s decision and before entering into either option, seeking independent legal advice is vital.

    Parenting Orders

    A parenting order is a set of orders made by a court regarding the parenting arrangements for a child. These orders can be made based on an agreement between the parties involved in the matter – the stepparent and the biological parents – and in this instance, is known as a consent order, as all parties are consenting to the orders. Parenting orders can also be made by a court after a hearing or trial, based on the facts presented. Parenting orders are always made on the basis of what is in the child’s best interests.

    Parenting orders must be followed by all people the order affects; however, they can be changed if the parties come to a new agreement or arrangement. Parenting orders expire when the child turns 18 and becomes a legal adult.

    Parenting orders can be applied for by stepparents as the Family Law Act allows people to apply for orders if they are a person who is concerned with “the care, welfare, or development of a child”.

    Parenting orders could be made for stepparents that allow for them to have full parental responsibility – like a biological parent, or they can be made for specific arrangements/circumstances. For example, parenting orders could be made that allows the stepparent to obtain all information available in relation to the child’s education and health matters.

    Adoption

    Adoption is a legal process that transfers the rights and responsibilities of parenting away from the child’s birth parents to the adoptive parents. It is a legal process, as well as a social and psychological process. Adoption is permanent and doesn’t expire, even when the child turns 18.

    As the consequences of adoption are very significant for both the new adoptive parent/s and the child, it is not an easy process and is not able to be obtained in all situations.

    Adoption orders are usually granted in circumstances where a biological parent is deceased or is not actively involved in the child’s life and parenting orders are believed to be insufficient in protecting the child’s welfare.

    Before applying for adoption it is usually required that a stepparent is married or living in a de facto relationship for at least two years with the child’s biological parent. The adoption process does differ by state and territory, which is why seeking legal advice is extremely important.

    Adoption bestows full parental responsibility onto the stepparent, which is equal to that of a biological parent and the child’s legal relationship with their biological parent and extended family is severed.

    What if as a stepparent, you split from the child’s biological parent?

    If a stepparent and a child’s biological parent split, unless there is a court order stating otherwise, there is no legal obligation for any type of relationship to exist.

    If, as a stepparent, you wish to continue a relationship with the child, such as spend time with the child, you may be able to come to an agreement with the child’s biological parent. This agreement could be an informal one or if could be made formal through parenting orders.

    A stepparent could also potentially apply to have custody of a stepchild. This could also occur through an agreement with the child’s biological parent/s or be ordered by a court. However, it’s important to acknowledge that the Australian Family Law system aims to uphold the right of a child to have a meaningful relationship with both of their parents – referring to their biological parents. If it can be demonstrated that it is in the child’s best interests for their stepparent to have custody or parental responsibility, this could be granted. Again, before commencing any form of legal action like this, it is highly recommended that you speak to a family lawyer.

    Will a stepparent have to pay child support?

    Usually, a stepparent’s duties to the child are considered secondary to those of a biological parent, including financially supporting a child.

    While it’s not overly common, there may be circumstances where a stepparent may be required to pay child support, however, a stepparent can only be ordered to pay child support by a court. Bodies such as the Department of Human Services or Services Australia do not have any authority to order a stepparent to pay child support.

    Child support being paid by a stepparent may be considered the proper course of action in a few different circumstances, some of which include:

      • Whether the child received proper financial support from their biological parents;

      • The relationship between the child and stepparent;

      • The arrangements that have existed for the maintenance of the child during the relationship; and

      • The length and circumstances of the marriage or relationship between the biological parent and stepparent.

    If you’re concerned about the possibility of having to pay child support for a stepchild, you can discuss this with a family lawyer.

     

    If the child’s biological parent passes away, is their stepparent now their parent?

    If you’re a stepparent and your partner passes away, you do not automatically assume custody rights or parental responsibility. If the child’s other biological parent is still alive, parental responsibility will be transferred fully to them.

    As an important person in the child’s life, you can still apply to spend time with the child, communicate with the child, and even potentially have the child live with you. However, as they have a biological parent, the court will usually first aim to ensure that the child has a meaningful relationship with this parent.

    As the stepparent, you and the surviving biological parent may be able to come to an agreement and have this formalised in orders.

    If your partner is the child’s only biological parent alive, then they may wish to ensure that you’re the child’s legal guardian if they were to pass away. This can be done by including a guardianship clause in their will. The guardianship clause directs the stepparent to become legally responsible for the child upon the death of the biological parent.

    It’s important to understand that the guardianship clause is not legally binding, it is a direction. If a dispute does arise, the Federal Circuit and Family Court of Australia will make a final decision about the child.

    How does inheritance work with stepchildren?

    There is no legal requirement to include stepchildren in your will, however, if you wish for any of your assets to go to your stepchild/ren, then this must be stated in your will, unless you have legally adopted the child.

    If you pass away without a Will – which is called intestate – the way in which your assets will be distributed is according to a statutory scheme that lists relatives in order of their entitlement to your assets. Stepchildren are not included as a relative entitled to anything. It is possible for a stepchild to contest a stepparent’s will, as they are an eligible claimant, however, this is only usually successful in limited circumstances.

    If you pass away without a will and you did legally adopt your stepchild, they have the same entitlements as biological children. If you adopted your stepchild, they will no longer be entitled to inheritance from their other biological parent (the parent who has lost their legal responsibility through the adoption), unless the biological parent named them in their will.

    Why you need to talk to a lawyer if you’re a stepparent

    As you can see, being a stepparent can be complicated for a lot of reasons. Not only are you navigating the parenting of a child that may have experienced parenting in different ways, you may also be limited in the authorisation and responsibility you have for that child.

    If you wish to better understand your rights and responsibilities, apply for parenting orders or adopt a stepchild, it’s important to seek legal advice from a family lawyer who is experienced in parenting and child custody matters. Laws and regulations may differ in your area and family law can be difficult to understand at the best of times.

    If you’re a stepparent or a biological parent who has separated or divorced from your child’s other parent, talk to the team at Unified Lawyers today. We’re here to help you understand your options and ensure that you can make an informed decision about your future and the future of your child/stepchild.

    Call us today on 1300 667 461 or book your free consultation using the button below.

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