Can A Step-Parent Fight For Custody?
Written by: Adam Wightman | Legal Team
Blended families are becoming even more common in Australian society and throughout the world.
In this regard, many step-parents are assuming an even more active role in raising their step-children, and are a fundamental and crucial part of a child’s loving family upbringing. However, what happens when the relationship between the child’s biological parent and their step-parent ends? Do step-parents have the right to spend time and communicate with the child, or make decisions regarding the child if the biological parent refuses?
The simple answer is, ‘Yes’, step-parents do often have the ability to continue in their role as a parent to the step-children; however, they do not automatically have the same legal rights and responsibilities as biological or adoptive parents, and satisfactory outcomes can be more difficult to achieve.
How Does Family Law View Step-parents?
The Family Law Act 1975 is the legislation that governs separated couples and families in relation to the division of their assets, and also the care arrangements for children.
The Family Law Act 1975 defines a ‘step-parent’ as someone who is not a biological parent of the child, who is or has been married to or in a de facto relationship with a biological parent of the child, and treated the child as a member of their family during the relationship.
If a step-parent decides they wish to take action to maintain a relationship with a step-child after separation from their biological parent, this definition helps them remain relevant to the discussion of what is best for the child. In that event, parties can either agree on parenting arrangements, or if they cannot agree, they can apply to the Federal Circuit and Family Court to decide the matter based on the principles outlined in the Family Law Act 1975 and the associated case law.
Separation is a hard time for both parties involved, and it can make for complications when looking to separate your assets of your former partner. If you want to know more about the rules, check out this previous article we put together: Can My Ex Take Half Of My House?
Parental Responsibility/Decision Making + Spending Time Arrangements
In relation to the care of children following the parents’ separation, the Family Law Act deals with two major concepts.
- Concept #1: The first concept is the issue of which parent the child should live with, and the time and manner in which the child spends time and communicates with the other parent.
- Concept #2: The second concept deals with the issue of ‘parental responsibility’, and in particular, who has the responsibility and power to make decisions for the child in relation to issues regarding their care, welfare and development.
Despite often playing a crucial parental role for the child, step-parents do not automatically gain the presumption that they have legal parental responsibility for the child under the Family Law Act. This means they cannot automatically sign school forms, apply for passports, or provide consent for medical treatment (except in emergencies when neither biological parent is available). Even in the event of a biological parent’s death, legal responsibility typically falls to the surviving biological parent, not the step-parent, unless formal steps are taken.
Understanding how children are affected by separation is crucial to ensuring their well-being. It’s even more important to understand our child/step-child’s rights. Check out this previous article we put together: When Can My Child Decide Who They Live With?
What Family Law Allows Step-Parents To Do
Step-parents do have the ability to obtain parental responsibility for the decision-making relating to a child, and they also can have the child reside with them on a primary basis and/or spend time and communicate with the child. However, it is often more difficult for a step-parent to achieve these outcomes to the level that a biological parent would.
In any event, the avenues available to step-parents are as follows:
- Formal Adoption: this requires the consent of both biological parents (unless one is deceased) and the Court’s approval for the step-parent to adopt the child. For this reason, it is very unlikely that a step-parent would be successful in pursuing an adoption after their separation from the biological parents;
- Informal Agreement or Parenting Plan: following separation, a step-parent may seek to come to an informal (non-legally binding) agreement with the biological parent (often referred to as a ‘Parenting Plan’) to provide for, spend time with and communicate with the child. Such an agreement may also seek to confer some involvement in decision-making for the child; however, such agreements are not legally binding. Therefore, if the biological parent reneges on the Parenting Plan, then the only option available is for the step-parent to pursue the issue through Court Orders made in the Federal Circuit and Family Court; and/or
- Court Orders: a legally binding and enforceable Court Order providing a step-parent with parental responsibility/decision making for a child, or to have spend time and communicate with the child can be obtained with the agreement of the biological parent (and then formal ratification of the agreement by the Court – known as Consent Orders), or if parties cannot agree, the step-parent can make an application to the Federal Circuit and Family Court for it to make a determination on the issue.
Once the Court proceedings are issued, the parties will be given numerous opportunities to agree on the terms of parenting Consent Orders, and if they cannot agree, then the matter will ultimately proceed to a final hearing (known as a trial) where both parties will present their evidence and a Judge will make a decision on which Orders are to be imposed.
The Family Court’s Best Interests For The Child
It is quite unusual that matters will progress all the way to a final hearing, as most parties are usually able to agree on the terms of parenting Consent Orders in the months leading up to a Final Hearing. Particularly when they are guided by things such as Court-Ordered ‘Family Reports’ that are obtained along the way, which contain tailored recommendations for arrangements that are in the best interests of the child. Because, ultimately, ensuring the best interests of the child is the guiding principle in the Court’s decision-making process.
When a step-parent applies for parenting involvement or custody, the court’s primary focus is on the best interests of the child, anchored in:
- The child’s right to have a meaningful relationship with both parents and other significant adults; and
- Protection from physical or psychological harm.
Step-parents must therefore prove their ongoing involvement in the child’s life is in the best interests of the child. In this regard, they must demonstrate a substantial and meaningful relationship with the child over time and that their involvement is beneficial to the child. Where the matter is heavily contested, it can also be beneficial to show special or extenuating circumstances such as parental neglect, disability, absence, or the death of a biological parent.
Canny Legal + Understand Step-Parents’ Rights In Family Law
In Australia, step-parents do not automatically have custody or parental responsibility.
Legal recognition, such as Parenting Orders or Adoption, is required to gain formal rights. These steps depend on proving that the step-parent’s involvement is in the child’s best interests. In this regard, Court Applications by step-parents often face higher scrutiny than cases involving biological parents.
Nonetheless, pathways exist for step-parents to continue playing a crucial role in children’s lives after separation from the biological parent. When a step-parent has built a strong, positive, and committed relationship with their step-child, the Courts can and do award legal recognition, though it is evaluated carefully and contextually.
For anyone navigating these complexities, seeking advice from a qualified family lawyer is essential. Get in touch with us today to start a discussion with one of our expert family lawyers.
