Step Parent Adoptions: The how and why- and why I do them

Step Parent Adoptions: The how and why- and why I do them

Parents with a blended family sometimes seek advice about a step parent adopting a child of the other parent.  The main reasons a person might seek advice about step parent adoptions are when:

  • The child’s other birth parent has died.

  • The child’s other birth parent has been absent for many years and the parents want to ensure the child can remain with the step parent should the birth parent die;

  • The parents (or the child) wish to change the child’s surname to the step parent’s name;

  • The child has expressed a wish for the adoption.

At Michael Lynch Family Lawyers, I am the family lawyer who sees any client with a step parent adoption enquiry.  I have now assisted a number of families to complete successful step parent adoption applications.  However, I also have a personal interest in these matters – as I was adopted by my own Dad. 

My parents met when I was 4 years old, and I always just thought of my (then) step father as Dad.  It was only when I was in my first year of law at the age of 17 that I discovered adoptions need to be completed before a child turns 18.  I approached my parents about wanting to make things “legal” and we made an application.  The process in my case was pretty straightforward, and after an interview with a case worker and a few other steps, the order was granted and my birth certificate was reissued with Dad’s details.

The process for a step parent adoption is a little different now, as new adoption legislation commenced in February 2010.  The major change in the Adoption Act 2009 (Qld) is the requirement that a step parent must now first obtain permission (“leave”) from the Family Court before commencing a step parent adoption application with the relevant government agency. This amendment brought Queensland in line with the other States and Territories that already had this requirement.

Who May Apply to Adopt a Step Child?

A child’s step parent (the married or de facto spouse of one of the child’s parents) can apply to adopt the child if:

  • the person has lived with the child and their birth parent for at least three years continuously;
  • the person is an adult who is resident in Queensland, and is an Australian citizen (or the spouse or partner of an Australian citizen);
  • the person has been granted leave by the Family Court to commence adoption proceedings; and
  • the child is older than 5 years and younger than 17 years.

An application in relation to a child who has turned 17 but is not yet 18 may be accepted in some circumstances, only if Adoption Services Queensland (ASQ) is satisfied that there is enough time to complete the process before the child turns 18, and the grounds for making an adoption order are likely to exist.

The Queensland legislation was recently amended so that same sex couples can now apply for a step parent adoption, as long as they meet the eligibility requirements.

The Court Process

An application for leave must first be filed in the Family Court.  The Family Court has exclusive jurisdiction for adoption matters.  Both the step parent and birth parent (who is the partner or spouse of the step parent) should be applicants in this application. 

When the Court is determining whether it should grant leave, it must consider whether granting leave would be in the child’s “best interests”, taking into consideration the factors under Section 60CC of the Family Law Act 1975.  In addition, the Court must consider the effect of the adoption on the other birth parent’s parental responsibility, and any current parenting order.

Once the Family Court grants leave, an application is made to ASQ.  Under the Adoption Act, ASQ has an extensive list of criteria to consider before issuing a suitability report.  The suitability report is then presented to the Children’s Court for a final adoption order to be made.  Usually, the consent of both birth parents (if living) to the adoption is required. 

Feedback from ASQ has been that despite the requirement to first obtain the Family Court’s leave prior to filing an application they are still receiving a large number of applications. As such, the estimated timeframe to complete an application is currently between one and two years. 

Given the significant delays in processing a step parent adoption, I am mindful to explain to clients that there may be other ‘rights’ a step parent has under the Family Law Act.  

When Professionals Get Personal

In my first step parent adoption matter at Michael Lynch Family Lawyers, my clients were a step father and mother of a  child.  This matter involved a number of additional steps, as the child’s birth father spoke limited English and lived overseas.  After the Family Court granted leave, the father initially indicated that he would consent to the adoption.  However, he ultimately decided not to be involved further, and it became necessary to apply to the Children’s Court to be able to proceed without his consent.  I appeared at this hearing on behalf of my clients and successfully obtained an order to dispense with the requirement for the father’s consent.

In a funny twist of fate, I was surprised at court to see the case worker assigned to my clients’ case was the same case worker who had handled my own adoption application 12 years earlier.  She remembered my aspirations in my interview with her of being a lawyer, and was pleased to see that they had come to fruition.  

Ultimately, I had the privilege of seeing my clients’ case through from the initial Family Court application to the day the Children’s Court granted the final adoption order three years later.  Being able to achieve such a special and long-awaited outcome for this family was a special moment for me, both as a lawyer, and as someone who knows first-hand the unconditional love and richness that can come from a blended family.  It’s for this reason that I continue to enjoy working with clients at all stages of the step parent adoption process. 

Disclaimer: The information contained on this site is for general guidance only.  No person should act or refrain from acting on the basis of such information.  Appropriate professional advice should be sought based upon your particular circumstances because the application of laws and regulations undergo frequent changes.
Arbitration in family law: What is it and when should it be used

Arbitration in family law: What is it and when should it be used