Spouse or Relative and Step Parent Adoption

The rising incidence of divorce and remarriage has resulted in an increase in the number of blended families which include children from previous marriages. During the 1970's it became common for adoption to be used as a means of officially incorporating children into a parent's new marriage. The terms 'Step-Parent' or ‘Spouse' Adoption have been used to refer to the adoption of a child of one partner from a previous marriage or relationship by the other partner.

The term 'relative adoption' is used to refer to the less common situation of relatives such as grandparents or an aunt seek to adopt a child who is in their care.

As Relative and Step Parent Adoptions increased in prevalence, the view was expressed that Adoption was more appropriately used in situations where children were not related to the Adoptive Parents. More specifically, concerns expressed regarding Adoption in Relative and Step-Parent situations includes the following:

• Adoption permanently severs the legal relationship between the child and relatives who are significant to the child.
• Adoption could be used as a means of excluding the child's extended family, who would no longer have a legal relationship with the child.
• Adoption may inhibit the ability of the family members to clarify their legal relationships and it may also inhibit the ability of the child to clarify his/her biological background.
• With relation to children adopted by relatives, genealogical confusion could arise as the child's mother may become the legal 'sister' or ‘cousin'.

Lifelong Issues in Adoption

The 1987 amendments to the Adoption Act, 1984 reflect the view that the Family Law Act 1975 is the most appropriate means of providing legal recognition to parent/child relationships in family situations, and that, in all but exceptional circumstances, an order through the Family Court is more appropriate than adoption in Relative and Step-Parent situations.

Section 12 of the Adoption Act 1984 reads as follows:

The Court shall not make an order for the adoption of a child in favour of a person, who, or whose spouse, is a relative of the child or in favour of two persons who are, or one of whom is, a relative of the child unless the Court is satisfied that:

(a) the making of an order in relation to the Guardianship or Custody of the child under the Children Guardianship and Custody Act 1984 or the Family Law Act 1975 of the Commonwealth as amended and in force for the time being in relation to the child would not make adequate provision for the welfare and interests of the child; and

(b) exceptional circumstances exist which warrant the making of an Adoption Order; and

(c) an order for the adoption of the child would make better provision for the welfare and interests of the child than an order referred to in paragraph (a).

Section 11 (6) applies the same provisions to situations where an application is made by the spouse of a parent or of an Adoptive Parent of a child.

Amendments to the Family Law Act were proclaimed in April 1990. These relate to Step-Parent situations. If leave is not granted by the Family Court prior to the lodgement of an Adoption aApplication in the County Court, the Family Court will continue to regard the child as a child of the marriage/de facto marriage of the Birth Parents. The rights of the Birth Parents in relation to custody, guardianship or access to the child do not cease, and the Family Court could entertain further applications from the non-custodial Birth Parents. If an application for leave of the Family Court is granted, application to the Family Court in the future could only be made in the role of "an interested party" which is generally not as significant as that of "parent".

The Family Law Reform Act 1995 commenced operation on 11 June 1996, and does away with the old terminology of "guardianship, custody and access". New orders are established, known as "Parenting Orders". Relevant Orders are the "Residence Order", which orders with whom the child lives, a "Contact Order" which deals with the kind of contact between a child and another person, and a "Specific Issues Order" which deals with any other aspect of parental responsibility. When considering an application for a Residence or Specific Issues order from a non-parent, the Court will assess whether this person is a suitable person.

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Permanency of the Order and implications for Legal Relationships

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• An Adoption Order is permanent whereas an application may be made to the Family Court to vary or challenge a Parenting Order at a later time.
• A Parenting Order expires when the child turns 18. At the age of 18, a child may however make application to be adopted without the need for any other consent or reference to the amendment.
• After a child is adopted, a new Registration of Birth is provided which reflects the adoptive situation. With Parenting Orders, the child's Registration of Birth is not altered.
• Once an Adoption Order is granted, the Birth Parent(s) cease to be the child's Legal Parent(s) and the Adoptive Parent(s) become the child's Legal Parent(s). With Parenting Orders, the Birth Parent(s) remain the child's Legal Parent(s).
• In Step-Parent situations, an Adoption Order severs the legal relationship between the non-custodial parent's extended family and the child, and grants rights to the applicant's extended family. With Parenting Orders the extended family's legal rights are unaltered.
• In relative situations, the Adoption Order changes the legal relationship between the child and members of the family. With Parenting Orders, legal relationships remain unchanged.

  For further information

  To discuss these and any issues matters that pertain to the issue of Spouse Adoption and those listed below:

  • names,
  • inheritance,
  • access,
  • financial support,
  • the child's sense of security,
  • legal considerations,
  • age of child,
  • adoption by one person, and
  • length of marriage,

  ... contact your Regional DHS Office asking for the Duty Worker of the Adoption and Permanent Care teams.

  Adoption and Permanent Care Teams

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Interpretations of Law

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Interpretation of the provisions of the Adoption Act 1984 that affect Spouse Adoption include:

• What constitutes exceptional circumstances?
• Relationship with extended birth family.
• Factors which effect relationship between the child and Birth Parents negatively.
• Factors relating to security of child.
• The adequacy of Parenting Order.

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Consultation

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Prospective applicants and their solicitors may telephone Adoption and Permanent Care Services to request advice regarding a possible application.

Permanent Care Workers

The role of the Permanent Care Worker is to provide information regarding the effect of the 1987 amendment, the differences between Parenting and Adoption Orders, the general eligibility criteria for Adoption, and the Adoption Process.

Adoption and Permanent Care Teams

AFAV thank the Department of Human Services Victoria for providing information for this Web Page. 15.4.2000