You and your partner have recently decided to go your separate ways. Your partner has a child from a previous relationship and you have developed a strong relationship with this child that you want to maintain. Maybe you are the biological parent of a child and want to know how the logistics work with any separation that occurs between your child and their step-parent.
What Are The Step-Parent’s Rights & Most Importantly What Are The Child’s Rights?
Under the Family Law Act 1975 (“the Act“), a step-parent is defined as a relative of the child that:
- is a person who is not the child’s parent, and
- is either married or in a de facto relationship with the child’s biological parent and treats the child as a member of the family.
In family law, a relative can make an application in the Family Court in relation to a child, but more on that later.
Also under the Act, there is a presumption that the biological parents of a child have what is called “Equal Shared Parental Responsibility”.
This simply means, that both biological parents can determine where the child goes to school, can sign consent forms for the child and are responsible for the day to day care of the child, just to name a few examples. Essentially, legally assuming the roles and duties as a parent.
While a step-parent in a relationship may have undertaken duties and responsibilities that are usually akin to those of biological parents, this does not automatically translate to legal parental responsibility.
The biological parent’s duty will always take priority over that of a step-parent, no matter how close the relationship between the child and step-parent. Parental responsibility can only be transferred to another person through an order of the court.
Can You Still See The Child Post-separation?
Yes. In making any orders in relation to a child, the court also takes into consideration the child’s relationship with relatives, including step-parents.
As with any parenting matters, it is always easier if the parties can come to an agreement on time spent or other contact involving the child and the parent or step-parent.
If needed, step-parents are also able to attend mediation with biological parents to resolve any disputes.
What About Child Support?
A step-parent is not liable to pay child support through the Child Support Agency. One option is to enter into a binding child support agreement with the parent.
Death Of A Parent
In the event that one of the child’s biological parents pass away, the parental responsibility does not transfer to a step-parent; the surviving biological parent will have what is called “S”le Parental Responsibility”.
In limited circumstances, a step-parent may apply to the court for parental responsibility. However, this is a very rare occurrence.
There are 3 options available to a step-parent seeking parental responsibility for a step-child:
- Parenting Order,
- Adoption, and
- Legal Guardianship.
Parenting orders will usually require the agreement between the biological parents and the step-parent. In any application, the court will primarily consider whether the orders are in the best interest of the child, which includes maintaining a relationship with their biological parents.
The court will also take into consideration:
- The ability of the biological parents to provide for the child, in terms of welfare and financial support,
- Any care arrangements that are in place for the child involving the step-parent,
- The circumstances of the relationship between the child and the step-parent and biological parents,
- Whether the step-parent and biological parent are married or are de facto as per the definitions under the Act, and
- Any other circumstances the court thinks relevant.
How We Can Help
Quinn & Scattini Lawyers’ expert Family & De Facto Law Team can assess your individual situation in accordance with the Act, provide expert guidance in negotiations with your former partner, offer practical and experienced advice if appearing before the court is unavoidable, and provide you with the best possible representation if court-ordered agreements are required. With over 40 years’ experience, our family lawyers are experts in the family law field. The Team also boasts an Accredited Family Law Specialist.
We are available to meet with you at any of our local offices (Brisbane, Gold Coast, Beenleigh, Cleveland and Jimboomba) or by telephone or video-conference.
This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.