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Step-parents and family law – what is the legal situation?

By August 13, 2020February 23rd, 2024No Comments

Step-parents and family law: What happens when a couple separates and a partner who has been a step-parent wishes to continue to see the step-children, or even have them live with them? Does a step-parent have any access to the family court system to seek time with the children? Let’s take a look.

Contrary to popular belief, it isn’t just biological parents who can apply through the court system for orders relating to children. Under the Family Law Act 1975 (the Act), any person “concerned with the care, welfare and development of the child” can apply for parenting orders. This definition includes grandparents, step-parents, and other important and significant figures in a child’s life, which could potentially include aunts or uncles depending on their level of engagement with the children.

However, it’s important to realise that some of the very important presumptions in the Act do not apply to step-parents or other significant non-parents. For example, where one of the underlying objectives of the Act is to ensure that a child has the opportunity to have a meaningful relationship with each of their parents, that particular right of the child does not extend to relationships with step-parents or other significant figures.

But as we know, in reality step-parents do form meaningful relationships with their non-biological children in blended families, and often such relationships are very strong and even “foundational”, meaning they are of great importance for a developing child, especially if the step-parent bond has been formed over a long period of time.

So just because adult relationships have broken down, why should a child automatically have to miss out on the continuing relationship with their step-parent who has often been a parental figure for much of their life?

While emotional connections are strong, legal connections are often less certain. This often places step-parents in somewhat of a limbo regarding their step-child, and wondering what they can do to preserve their relationship with the child.

What is a step-parent?

Under the Act, a step-parent is someone who is not a biological parent of the child, but has been married to or a de facto partner of a parent of the child, and has treated the child as a member of the family formed with the child’s parent. (This definition also includes same-sex couples.)

What can step-parents do to preserve the relationship with their step-child?

Even if you are not biologically related to a child, you are still able to seek parenting orders if you can make a case that it would be in the child’s best interests.

For example, a case currently being appealed in the family courts (“Cottey & Backe”) involves a child who lived with his mother and step-father until the mother passed away, after which the child’s biological father retained the child after a visit. The step-father is fighting to have the child returned to live with him.

Of course, in an ideal situation, biological parents will recognise the bonds that have formed between their children and step-parents and will want to work with the step-parent to maintain those beneficial relationships, even without the direction of a court to do so.

But lacking agreement with the biological parent(s) of the child regarding the potential time a step-parent will spend with a child, just like parents, step-parents are able to utilise Family Relationship Centres and Alternative Dispute Resolution Centres to access help in negotiating with biological parents regarding establishing regular visitation with their step-child.

If a step-parent is, for whatever reason, unable to reach agreement with the biological parents, the mediation service will usually issue a mediation certification under section 60I of the Family Law Act. The step-parent may then make application to the courts to have orders made to enable them to see the stepchild. That is, they may seek orders:

  • for a step child to live with them;
  • to be able to spend time with a step child; or
  • to have some parental responsibilities for that child.

Note that step-parents have to first satisfy a “threshold test” – this means the courts have to make the finding in a preliminary hearing that the step-parent has an appropriate “nexus or concern with the care, welfare or development of the child”.

The courts are likely to grant such orders if the courts believe it is in the best interests of the child to do so. Factors which may be relevant are:

  • whether the child thinks of the step-parent as ‘Mum’ or ‘Dad’;
  • the nature of the relationship between the step-parent and child;
  • each of the biological parent’s attitude towards the step-parent while they were still in a relationship (for example, did they encourage the relationship between the child and the step-parent);
  • how long the step-parent has been in the child’s life.
  • whether the step-child is related to the biological parent’s own children, ie their half-siblings, and whether there is any proposal to separate the siblings.
  • as well as a variety of other factors.

When the family courts make orders relating to children, they look to see who will step up and offer the child the most reliable, consistent and positive parental figure.  As such, non-parents who can offer a child the benefit of regular, positive role modelling may be preferred in the family courts over a disengaged or unfit biological parent.

Courts also bear in mind the importance of keeping siblings together as much as possible. So, if the biological parent has had children with the step-parent then this will be taken into consideration. Extensive research confirms that growing up with siblings and sharing activities gives people a greater chance of experiencing enduring adult sibling relationships.

Parental responsibility

In some circumstances a step-parent may be granted parental responsibility, such as if the biological parent/s aren’t available or if there are concerns over the child’s welfare. Courts will always base their decision on the best interests of the child.

Parenting orders may not necessarily allocate parental responsibility to a step-parent, and sometimes parental responsibility may not even be desired—sometimes step-parents simply wish to have the ability to continue to attend school functions, remain informed of their step-child’s education and health, and so forth. At the time of applying for a parenting order, applicants can request such arrangements. If all parties are in agreement, they might simply apply for consent orders to formalise their agreements and make them legally binding.

Step-parents and child support

It is the duty of the child’s biological parents to financially support the child, however under certain circumstances, courts can order a step-parent to pay child support. Factors that are considered by the court include:

  • Whether there is financial support from the biological parents;
  • How the child was supported during the adults’ relationship;
  • The relationship between the step-parent and the child’s biological parent; and
  • The relationship between the step-parent and the child.

Note that any order for a step-parent to pay child support for stepchildren is completely unrelated to decisions over custody or time with the child.

Step-parent adoption

Another option to consider for step-parents is to adopt their step-child. This forms permanent legal ties between the step-parent and the child, with all the responsibilities that come with that. But it’s a complicated process and isn’t always suitable. For more info, you may like to read our article on step-parent adoptions.

Are you separated and need assistance with establishing legal custody arrangements for your children, even if they are not your biological children? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.

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