'It's The Law' - Step-Parents rights

Stepparent’s rights

Many children within the Wimmera are being raised by a birth parent and a stepmother or stepfather as one or both of their parents have re-partnered. These stepparents sometimes fulfill the role of a parent in terms of the care of the child but are not recognised as a parent by law.  

Under Australian family law, there is a presumption of “equal shared parental responsibility” for birth parents that continues even after a family separates. Stepparents are defined as a relative of the child, but parental rights are not automatically extended to them. Instead, there are legal steps required before you can do things like authorise medical care and sign school forms.

An application for parenting orders is an option to consider. This is a set of orders made by the Family Court or Federal Circuit Court about the parenting arrangements for a child. These are usually made with the agreement of both biological parents of the child and may outline things like who the child will live with, time spent with each parent, allocation of parental responsibility and other aspects of care.

If your partner dies and you want to continue to have parental responsibilities for your stepchild, you can also apply for a parenting order. This application may be strengthened if your partner has included a clause in their will appointing you as legal guardian of the child on their death.

If the surviving birth parent is incapable of caring for the child and has a history of child abuse or family violence you are more likely to succeed in obtaining parenting responsibility for the child. However, if the other biological parent is willing and able to provide care for the child, it is likely the orders for parental responsibility would be made in their favour. This is because the court’s main consideration is to facilitate a meaningful relationship between a child and their biological parents.

Adoption appears to some stepparents to be an attractive option. However, adoption will only be allowed by stepparents in exceptional circumstances (such as the where both biological parents are deceased). This can be a difficult and lengthy process, with parenting orders generally used instead.

This is an area of family law that can be difficult to navigate, but lawyers can provide advice on your specific circumstances.

 Patrick Smith is the principal of O’Brien & Smith Lawyers. This article is intended to be used as a guide only. It is not, and is not intended to be, advice on any specific matter. Neither Patrick nor O’Brien & Smith Lawyers accept responsibility for any acts or omissions resulting from reliance upon the content of this article. Before acting on the basis of any material in this article, we recommend that you consult your lawyer.