What is a step-parent?
The term “step-parent “is defined in the Family Law Act 1975 to mean a person who, in relation to a child:
a) is not a parent of the child; and
b) is or has been married to, or is or was a de facto partner of a parent of the child; and
c) treats, or at any time while married to, or as a de facto partner of the parent (this includes same-sex couples) treated, the child as a member of the family.
Does a step-parent have legal responsibility for step-children?
Although step-parents often perform parenting roles, they do not assume any legal parental responsibility for a child under the law. Accordingly, step-parents do not have any legal rights with respect to parental responsibility for a child and if a partner dies, the step-parent will not assume parental responsibility for any stepchildren. Instead, parental responsibility will pass to the step-child’s surviving biological parent.
What happens if the parties separate or divorce?
In times of separation and divorce, there are a number of legal considerations specific to step-parents.
In relation to child support, the child’s biological parents have a primary duty to support him or her. However, in certain circumstances, a court can order a step-parent to pay child support for a stepchild. In making such an order, the court would have regard to the following:
- the level of financial support provided by the child’s biological parents;
- the length and type of relationship the step-parent had with the child’s biological parent and how the child was financially supported during that time; and
- the relationship between the step-parent and the child.
The court can also look at any other circumstances which it deems to be relevant.
Visiting Rights and Custody
It is obviously better to try to reach an agreement with the biological parents of the child regarding visiting rights by a step-parent. However, if an agreement is not possible, an application can be made to the court. Under the Family Law Act, children have a right to spend time and communicate on a regular basis with any person who is significant to their care, welfare and development. This can include step-parents if the court so determines. The court will make a decision based on what it considers to be in the child’s best interests.
If the biological parent who is also the partner of the step-parent dies, the step-parent can seek an order from the Court to have the stepchild live with them. However, they are only likely to obtain such an order if the child’s surviving biological parent does not want custody or is otherwise unable to provide proper care for the child. The court will always attempt to ensure that the child has a proper and ongoing relationship with his or her biological parent.
If there’s a dispute over custody and guardianship of the step-child, the Family Court will make its decision based on what it deems to be in the child’s best interests.
Always seek legal advice
Before deciding what to do, you should always seek legal advice. An experienced family lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can also help you to try to reach an agreement with the other party without going to Court.
(Disclaimer: The material in this article is of a general nature and intended for information only. It is not intended to be comprehensive and does not constitute legal advice. Any person with a specific legal issue should consult a lawyer.)