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Insights

Firstly, who is a step-parent?

Upon the marriage of two individuals, any children that either party had prior to the marriage become the stepchildren of the other party.

Intrafamily Adoption

A step-parent may choose to apply to legally adopt a step-child. This is referred to as an ‘intrafamily adoption’.

The Adoption Act 2000 (NSW) and the Adoption Regulations 2015 (NSW) set out the requirements that a step-parent must meet if they wish to adopt a child. These applications are heard and determined by the NSW Supreme Court.

The court’s primary consideration will be whether the adoption is in the child’s best interests (considering during childhood years and later in life) compared with alternative arrangements for the child’s care, such as parenting orders which provide for all aspects of the child’s care without the need for adoption.

Requirements

There are many requirements that must be met in order to make an application to the Supreme Court for intrafamily adoption, which include:

  • The applicant must live in, or be a permanent resident of NSW;

  • The child must be at least 5 years old and less than 18 years old on the date the application is made;

  • The applicant must have lived with the child and the child’s birth parent for a continuous period of at least two years immediately prior to the application being made;

  • Consent must been given for the adoption by the appropriate persons, which may include any person who has parental responsibility for the child or a biological parent (the Court can waive this requirement in exceptional circumstances);

  • The person/s consenting to the adoption must have participated in registered counselling to ensure that person understands the legal and emotional effects of the adoption of their child.

  • The Court must be provided with a written report prepared by a ‘Contracted Adoption Assessor’;

The Court must be satisfied that the adoption is clearly in the best interests of the child over any other action that could be taken by law.

As part of an adoption application to the Supreme Court it is necessary to draft and submit to the Court a number of legal documents including a Summons and affidavits.

These documents must meet certain criteria in order to be accepted by the Court and are therefore best drafted and filed by a legal representative.

Your Application is successful, now what?

If an application to the Supreme Court for adoption is successful:

  1. The adopting parent will be able to assume the legal parental responsibility of the child, that is, to exercise all the rights regarding parental responsibility that biological parents have over their children such as consenting to medical treatment on behalf of the child;

  2. The child has the right of inheritance over the adopting parents estate; and

  3. The adopting parent will be liable to pay child maintenance in the event that the marriage fails.

If you have a question about the adoption process, or have any other family law enquiry please contact a member of our family law team today.