Adoption

THERE are MANY ways to CREATE a FAMILY.

 

Not every lesbian or lesbian couple chooses to bear children. Adoption is another route that may be as rewarding and nourishing as having biological children. If you have friends who have adopted, you’ve probably heard their stories or even possibly lived parts of their stories with them.

Popular culture teaches us there is something “not quite as real” as having biological children, but reflections by actual adoptive parents tell us otherwise. However, adoption is its own particular experience and it’s important to know a bit about the process before moving forward.

The most recent statistics from the Australian Institute of Health and Welfare (AIHW, 2015) show that as of 30 June 2014, there were 43,009 Australian children living in out-of-home care and this has increased from 7.7/1,000 children at 30 June 2013 to 8.1/1,000 children at 30 June 2014.[i]

Adoption is when one or two parents transfer all of their legal parental rights to new parent/s. Adoptive parents have the same rights and responsibilities as biological parents, and adopted children have the social and legal benefits of biological children.

If you decide to adopt a child, you may have a child placed with you who is aged anywhere from a baby who is just days old to a child who may be ten years old, or even older.

 

Giving a child a loving safe home is a wonderful thing to do and I know people who have gone down this path and have amazing relationships with their children. Imagine changing a child’s life in that way and being able to provide for them the thing they need the most in life.

 

How to adopt

There are several different ways to adopt a child. One might take on a child for permanent foster care, adopt a child from overseas, adopt a child with special needs, or do an intrafamily adoption (take on a child who is not yours but is related to you, such as a niece or nephew). Each of these ways has its own particularities; when considering your options, it’s important to ask yourself if you are a good fit with, for example, a child who may mature developmentally only to the level of a six-year-old and therefore need lifetime care, or do you have the skills to manage a child who will require multiple operations in hospital, or are you interested in learning about and integrating into your life a culture that may be very different from your own.

Each state and territory in Australia has different laws for lesbian couples or individuals who want to adopt a child. Unfortunately, the adoption process is very expensive and often lengthy. International adoption rates range from between $6,000 and $25,000, while adoption via the foster care system is under $1,000.

In Western Australia, for example, prospective parents can wait as long as seven years.[ii] There are also age limits for prospective parents that you should research before becoming invested in adoption.

Being older when you begin your family planning has many implications. I know myself that I wanted to have my children when I was younger, and international adoption simply would not have allowed it. On the other hand, lesbians open to adopting an older child tend to have a far shorter waiting period. Many happy families have been created this way.

 

Adopting as a single lesbian

One factor in adoption that isn’t an issue (as it is in trying to get pregnant through IVF) is whether you are partnered or not.

Single lesbians can currently adopt a child in New South Wales[iii], Australian Capital Territory[iv], Western Australia[v], Tasmania[vi], Queensland[vii], Victoria[viii], South Australia[ix] and Northern Territory[x] (but only in exceptional circumstances, like if the child is under the care of the Minister i.e. a ward of the State or the Minister is satisfied that the circumstances make it desirable to do so).[xi]

In general, single applicants have lower priority than married applicants or those in a de facto relationship.

 

Adopting as a couple

Lesbians who have been in a two year or longer de facto relationship can adopt a child in New South Wales[xii]. Lesbians can also adopt a child in the Australian Capital Territory[xiii], Western Australia[xiv], and Tasmania[xv]. From 1 September 2016, Victoria[xvi] allowed lesbian couples to adopt and in November 2016, Queensland and South Australia both amended their respective Adoption Acts to allow same sex couples to adopt.          

   

The Northern Territory[xvii] does not currently allow lesbians to adopt a child as a couple. If you live here obviously this will be a barrier to you moving forward with adoption.

Although lesbians who are legally allowed to adopt a child must satisfy the same requirements for adoption as heterosexual couples and individuals, the reality is that there are very few lesbian couples who are actually able to adopt a child. One reason for this is that there are only a small number of children available for adoption in Australia.

In the 2015 financial year, there were only 292 adoptions completed, which represented a decline of 8% on the previous period.[xviii] The reality is that most adopted children in Australia come from overseas and most countries have restrictive criteria on who can adopt. This means that overseas parents can veto lesbians in Australia adopting their children.


Another reason why the lesbian adoption rate may be so low is that existing parents may be involved in choosing adoptive parents for their child and may only allow their children to be adopted by a heterosexual couple. Another barrier for lesbians is that most non-governmental organisations that facilitate adoption (particularly in NSW) are religiously based organisations such as Catholic Care[xix] and Anglicare, and unfortunately adoption legislation allows discrimination against lesbian couples.[xx] However, Barnardos is one of the non-governmental organisations that actually seeks out lesbian adoptive and foster parents.

Given the low rate of adoption in Australia, most lesbian adoptions will likely result from long-term foster care or stepparent adoption. This doesn’t mean, however, that any foster care situation can lead to an adoption. Some foster children can live with their foster parents for years and still not be eligible for adoption. The Courts still place a lot of weight on the biological mother’s legal parental rights. This may even occur in a situation where the child herself doesn’t want to have anything to do with her bio mom but because the courts are in favour of preserving the relationship with the biological family, her foster family cannot become her legal parents.

However, in a recent case in the Supreme Court in NSW in March 2017, lesbian foster parents were permitted to adopt a 4-year-old girl who had been in their care since she was six months old. This shows a significant move forward in how lesbian parents are viewed by the Courts from a societal and legal perspective.

In this case the parents objected to the lesbians adopting the girl because the lesbian couple refused to raise her in the Catholic religion, of which the biological mother was a practising Catholic. The biological mother had in the past been convicted of the manslaughter of her 7-month-old son and spent over three years in jail, which included further time in custody for failing drug tests. Justice Sackar said that while the law required cultural and religious ties to be preserved "as far as possible", those concerns should not outweigh the child's best interests.[xxi] After also hearing from Barnardos, the adoption agency, and child experts in relation to the girl’s attachment to the lesbian foster parents, Justice Sackar granted the adoption. The Court also ordered the girl’s surname be changed to the same as the lesbian adoptive parents.

If your goal is to foster a child and then adopt him or her, make sure you are clear with the social workers what your long-term goals are, that you ultimately want to legally adopt a child.

After you have submitted an application to adopt, the assessment process normally takes from a minimum of three months up to four months to complete, and then the Department of Family and Community Services proceeds to finalise the adoption about six to nine months after the child's placement.[xxii]

Once an adoption process is finalised, all parties involved in the adoption process can access information about the adoption (including original and adoptive birth certificates, birth record and adoption orders) for adoptions made from 2010 on.[xxiii] Those parties include:

 

  1. adopted children;

  2. adoptive parents;

  3. birth parents; and

  4. non-adopted siblings.

 

This allows adoptive children and their families an opportunity to gain an understanding of their birth family heritage and any siblings, identity, and culture from an early age. It also provides birth parents with the option to know more about their child’s genetic heritage (which may be particularly useful if there are any medical issues).

If you are considering adoption, think about how open you would want to be with your child or how comfortable you would feel connecting with his or her birth relatives. Do you want your child to know his or her story from the beginning? How might you communicate that story in simple terms? There are many creative ways to approach this type of conversation; one friend wrote and designed a book she created on iPhoto for her son about his history that she began reading to him from a very young age. Also, would you be open to being in contact with the birth mother and her family, and if so, what boundaries would you need to make that work? Another friend who adopted siblings attends an annual picnic with the children’s birth family and stays in contact throughout the rest of the year; they correspond with the family by mail. These aren’t questions you’ll be able to answer on the spot, but these, and others, are ones you’ll need to consider if you want to adopt a child.

There are many support services for parents of adoptees to get help with these very complex issues. For more information on adoption:

 

https://aifs.gov.au/adoption-support-organisations

http://www.community.nsw.gov.au/docs_menu/parents_carers_and_families/fostering_and_adoption/adoption.html

 

For more information on the requirements for overseas adoptions:

 

http://www.ag.gov.au

 

 

Summary of Main Points:

 

  1. There several different ways to adopt a child, permanent foster care, overseas adoption, special needs adoption and intrafamily adoption.

  2. Although in most states lesbians can legally adopt, in reality there are few lesbians who do so because of discrimination from international adoption agencies as well as mostly religiously based Australian adoption agencies.

  3. Most lesbian adoptions in Australia are the result of long-term foster care or stepparent adoption.

 

Footnotes

 

[i] Australian Institute of Family Studies: Child Family Community Australia (October 2016), viewed 4 October 2016, https://aifs.gov.au/cfca/publications/children-care

[ii] Government of Western Australia: Department for Child Protection and Family Support (August 2016), viewed 4 October 2016, https://www.dcp.wa.gov.au/FosteringandAdoption/AdoptionAndHomeForLife/Pages/AllAboutAdoption.aspx

[iii] s 26 & Dictionary Definition of Couple in the  Adoption Act 2000 (NSW)

[iv] s 18(3) Adoption Act 1993 (ACT)

[v] s 39(1) Adoption Act 1994 (WA)

,[vi] s 20 Adoption Act 1988 (TAS)

[vii] Adoption Act 2009 No29 (QLD)

[viii] s 11 Adoption Act 1984 (VIC)

[ix] Adoption (Review) Amendment Act 2016 (SA)

[x] Adoption of Children Act  (NT)

[xi] s 14(1)(b) of Adoption of Children Act (NT)

[xii] s 26 Adoption Act 2010 (NSW)

[xiii] s 18(1)(b) Adoption Act 1993 (ACT)

[xiv] s 39(1)(e) Adoption Act 1994 (WA)

[xv] s 20 Adoption Act 1988 (Tas)

[xvi] s 11 Adoption Act 1984 (Vic)

[xvii] s 13(1) Adoption of Children Act 1994 (NT)

[xviii] Preiss B, “Adoption rates slump, Australians wait years to adopt overseas children” The Sydney Morning Herald (December 2015), viewed 4 October 2016, http://www.smh.com.au/federal-politics/political-news/adoption-rates-slump-australians-wait-years-to-adopt-overseas-children-20151217-glprfc.html

[xix] Preiss B and Willingham R, “Catholic adoption agency wants exemption from same-sex laws”, The Age, (October 2015), viewed 4 October 2016, http://www.theage.com.au/victoria/catholic-adoption-agency-wants-exemption-from-samesex-laws-20151006-gk2lip.html

[xx] s 59A of the Anti-Discrimination Act 1977 (NSW)

[xxi] Hall, L “Adoption by same-sex couple opposed because of birth parents' Catholic faith” The Sydney Morning Herald (March 2017), viewed 23 April 2017, http://www.smh.com.au/nsw/adoption-by-samesex-couple-opposed-because-of-birth-parents-catholic-faith-20170323-gv4qdm.html

[xxii] NSW Government Family & Community Services: Adoption process for adoptive applicants (2016), viewed 4 October 2016, http://www.community.nsw.gov.au/parents,-carers-and-families/fostering,-guardianship-and-adoption/adoption/want-to-adopt/adoption-process-for-adoptive-applicants

[xxiii] Adoption Act 2000 (NSW)

 

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 nevans@nelawyers.com.au.

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