Adopting your partner's child
If you have had a child on your own, SECOND PARENT adoption can be a way of your partner obtaining legal rights to you child. Or, as a SINGLE LESBIAN, it’s quite possible you might find yourself dating a woman who has children.
As the relationship progresses, you’re likely to start taking on a parental role with the child. Maybe you help the child get dressed for school and prepare her lunch, or perhaps you read to him and drive him to his karate lesson. On some nights you could give the children a bath and put them to bed. But even though this parental role evolves naturally, you generally have no legal parental rights even if you are in a registered relationship with the children’s legal mother. This is unless you use the stepparent adoption process to obtain legal rights, or by obtaining parenting orders from the Family Court (with the consent with the legal parent/s).
State by state
Lesbian co-mothers can adopt a child as a second parent (or stepparent) in the following states and territory:
Exceptional or special circumstances must exist for a step-parent to adopt a child in the Northern Territory, Tasmania and Victoria.[i]
The Northern Territory currently excludes lesbian co-mothers (all same sex couples) from adopting a child as a second parent. In Tasmania, a second parent can adopt only where her partner is the parent or relative of the child and the couple have a registered partnership. Each state has specific requirements.
Most states also have requirements that the mothers have been in a relationship for a certain period of time (usually 2 years), that the partner has lived with the child for a certain period of time (usually 2 years), and that the child be of a certain age (usually at least 5 years of age).
In most second parent adoption applications, applicants are required to obtain the consent of the Family Court of Australia before obtaining an adoption order.[ii]
In all States, except the ACT, the law says that a court should be satisfied that no other orders, such as custody or guardianship, would equally promote the welfare of the child, prior to making an adoption order. The reason for this is that adoption severs the legal relationship between a child and its other legal parent and then awards legal status to the birth mother’s new partner. This means that the birth mother or father (if there is one) would have to give up their parental rights. Because of this, courts are generally instructed to consider whether Family Court parenting orders giving parental responsibility are preferable to second parent adoption.
A Family Court Parenting Order can give a stepparent legal standing to make decisions in relation to the child and legal recognition to the parent without the need for adoption. This may occur in a situation when the other parent is deceased and their family have no contact with the child, meaning there is only one surviving parent and her new partner (the stepparent).
If the legal parents agree on a parenting order from the Family Court, then they can do this as a Consent Order, meaning it’s an order with the consent of the parties.
If you live in a state or territory where lesbian second parent adoption is not allowed, you can apply to the Family Court for a parenting order as a person “concerned with the care, welfare, and development” of a child. This means you could obtain orders to spend time with a child (if you have separated) and be consulted in decisions in relation to the child.
All Australian states and territories, however, have provisions in their legislation to recognise adoptions granted in other states.
Before starting the process of a second parent adoption, you should think hard and speak to a lawyer about your best options. It is a permanent lifetime commitment to the child. The process can be slow and expensive. The process can take years and you may be paying legal fees in excess of $30,000. You are also required to have a lawyer to file an application with the Supreme Court.
If you do adopt, a new birth certificate will be issued which reflects the second parent as the other “mother” or “parent”. The benefit of adoption is that it cannot be changed. With a Family Court order, the child’s registration of birth is not always altered and orders can be changed at a later date depending on the specific circumstances of each case.
Summary of Main Points:
A lesbian co-mother may use the step-parent adoption process as a means of obtaining legal rights over a child in a same-sex relationship.
Lesbian step-parent adoption is legal only in some states, but all states recognise adoptions granted in other states.
Another option is to petition the Family Court for an order as a person “concerned with the care, welfare and development” of a child.
[i] Adoption of Children Act 1994 (NT), s 15(3)(b); Adoption Act 1988 (Tas), ss 20(7), 21; Adoption Act 1984 (Vic), ss 11(6), 12
[ii] Family Law Act 1975 (Cth), s 4(1) (deﬁnition of “prescribed adopting parent”), s 60G.
Note to readers: This information is intended as a guide to the law and should not be used as a substitute for legal advice. While every effort has been made to ensure that the information contained here is as up to date and accurate as possible, the law is complex and constantly changing (particularly relating to same-sex parenting) and readers are advised to seek legal advice in relation to their situation.
If you need legal advice, please contact Nicole Evans from Nicole Evans Lawyers at email@example.com.