It is a common scenario that one of the parents who care for a child is not their birth parent but a stepparent. There may come a time, that having discussed the matter with their other parent, and the child, that they wish to legally adopt their step-child, and this is when their family lawyers are most likely going to be required to advise, and represent them, given that it can be a complex process.
The first thing that needs to be established is whether or not the stepparent who wishes to adopt their stepchild is actually eligible to do so. The legal requirement and eligibility rules relating to stepparent adoption are laid out in the Family Law Act of 1975.
Before a family court will even consider an application for stepparent adoption, there are three basic questions that must be answered. The first and overriding requirement is that if the adoption takes place, it must be in the best interests of the child.
For anyone who has studied or encountered family law, they will have undoubtedly known that whenever a child is involved in any way in family court matters, all decisions will normally have this as the primary part of the consideration.
The second consideration is whether the child’s biological parent is no longer has any active role in their life. For example, they could have abandoned their family some years ago, or have chosen to live in another country without any contact with the child.
The third which might apply is if the child’s biological parent has died, and in addition to that, their family no longer has any significant contact. With reference to the deceased parent’s family, this is most likely to include grandparents, aunts, and uncles.
If the above considerations can be established to the court’s satisfaction, then it should allow the process to proceed, but there are still many hurdles. The process is conducted following regulations from the aforementioned Family Law Act, but in addition, each state will have its own rules and legislation relating to stepparent adoption.
In Western Australia that legislation is the adoption act of 1994, and one of the primary stipulations in that act is that stepparent adoptions are known as ‘open adoptions’. This principle has developed over the years as there was a realization that keeping adoptions secret was neither in the interests of the child being adopted, not the family of that child.
For a stepparent to be considered as an adoptive parent in Western Australia they must satisfy several criteria. They must be at least 18 years old, live in the state, be physically and mentally fit to care for the child, and be ‘of good repute’. This is a term which is mainly satisfied by the references that the adoptive services will request.
Another important criterion is that the stepparent must have been married to, or in a de facto relationship, with the child’s biological parent who has the legal right to care for the child, for at least 3 years.
If all the necessary criteria are met, not just in relation to the stepparent, but the best interests of the child and the necessary consent forms are received from the birth parent, the absent parent, and the child themselves, then the adoption should be granted.
Once the process is completed the child can receive a new birth certificate, on which the name of their new adoptive parent will be recorded.