What legal issues do step-parents face? Find out about step-parenting and Australian law, including parental responsibility, child support, custody and inheritance.

Am I a step-parent?

According to the Family Law Act 1975, you’re a step-parent if you:

  • are not a biological parent of the child
  • are or were married to, or a de facto partner of, one of the child’s biological parents
  • treat the child as a member of the family you formed with the biological parent, or did so while you were together.

A de facto relationship includes same-sex couples.

Step-parents are legally defined as a relative of the child.

What are my step-parenting legal responsibilities?

As a step-parent you don’t automatically have legal parental responsibility for your stepchild. This means you can’t legally authorise medical care, sign school forms, apply for passports and so on.

There’s an exception for emergency medical situations when you might have to give consent for a procedure if neither of your stepchild’s biological parents is available.

If your partner dies, you don’t automatically get parental responsibility for your stepchild. Parental responsibility passes to your stepchild’s surviving biological parent.

Even after parents separate, they still have shared parental responsibility. This means they’re jointly responsible for making big decisions like where their children go to school and how their children are cared for until they’re 18 years old. Sometimes a parent can ask the court for sole parental responsibility. The court decides depending on what’s in the child’s best interests.

How can I get parental responsibility as a step-parent?

As a step-parent, you can get parental responsibility for your stepchild through:

  • a parenting order
  • adoption
  • legal guardianship.

It’s a good idea to get independent legal advice about the best choice for your blended family and the legislation in your state or territory.

Parenting orders
A parenting order can give you full parental responsibility, meaning that you have all the responsibilities and authority of a biological parent.

You can also get parenting orders for specific arrangements. For example, you can get parenting orders that allow you to:

  • get all school notices, reports and any other correspondence that goes to parents
  • go to all school events that parents are invited to
  • get all information about your stepchild’s education and health
  • pick up your stepchild from the other parent on behalf of the biological parent
  • spend time and communicate with your stepchild if you separate from his biological parent.

A court can make a parenting order:

  • when the people involved agree on the arrangements – this is called a consent order
  • after a court hearing or trial, during which the court decides what’s in the child’s best interests.

If you adopt your stepchild, you become your stepchild’s legal parent. Adoption cuts all legal ties between your stepchild and her other biological parent and extended family.

You can adopt your stepchild only in certain circumstances – for example, when his biological parent has died or isn’t actively involved in his life, or if the court thinks it’s in your stepchild’s best interests.

Courts usually grant adoption only when parenting orders aren’t enough to protect a child’s welfare.

Legal guardianship
As your stepchild’s legal guardian, you’re responsible for protecting your stepchild and you’re allowed to make decisions about her care.

You can be appointed as your stepchild’s legal guardian by a court. The court will consider your stepchild’s needs and circumstances when deciding whether to make an order. It’s best to get legal advice because guardianship laws vary across Australia.

If your stepchild’s other biological parent dies, your partner – that is, your stepchild’s surviving biological parent – can appoint you as your stepchild’s legal guardian in a will.

Will I need to pay child support as a step-parent?

The Department of Human Services can’t order you to pay child support for a stepchild.

Only a court can order you to pay child support for a stepchild. And your duty to pay child support for a stepchild always comes after the duty of the child’s biological parents to support him.

When deciding if you should pay child support as a step-parent, the court would look at things like:

  • whether your stepchild gets a proper level of financial support from her biological parents
  • how long you and your stepchild’s biological parent were in a relationship or marriage and what kind of relationship it was
  • what kind of relationship you have or had with your stepchild
  • how your stepchild was financially supported during your relationship with her biological parent.

The court also looks at any special circumstances that, if they’re not taken into account, could make life hard for anyone involved in the situation.

What about step-parenting custody rights?

If your partner – that is, your stepchild’s biological parent – dies, you can ask the Family Court to allow you to spend time and communicate with your stepchild. You can also ask to have your stepchild live with you.

But if your stepchild’s surviving biological parent wants to and can provide proper care for your stepchild, the court will aim to make sure that your stepchild has a meaningful relationship with his biological parent. The court will decide based on what’s in your stepchild’s best interests. 

If your stepchild’s other biological parent has died, your partner might want to ensure that you’re appointed as your stepchild’s legal guardian. Your partner can do this in a will, although it isn’t binding.

If there’s a dispute over custody and guardianship, the Family Court will decide.

Visit the Family Court of Australia for more information.

What happens with inheritance?

You don’t have to include stepchildren in your will. But if you want to provide for stepchildren, you must name them in your will.

If you don’t name stepchildren in your will, they can contest your will after you die, but they’d succeed only in limited circumstances.

Dying without leaving a will is called intestacy.

If you adopt your stepchild and die without a will, your stepchild has the same entitlements to your property as your biological children.

If you don’t adopt your stepchild and die without a will, your stepchild won’t be entitled to anything.

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Raising Children Network is supported by the Australian Government. Member organisations are the Parenting Research Centre and the Murdoch Childrens Research Institute with The Royal Children’s Hospital Centre for Community Child Health.

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