What are your rights as a Step-Parent when you have separated from the biological parent?
Section 4 of the Family Law Act 1975 (Commonwealth) defines a Step-Parent as:
(a) A person who is not a parent of the child;
(b) Is, or has been, married to or a de facto partner of, a parent of the child; and
(c) Treats, or at any time while married to, or a de facto partner of, the parent, treated, the child as a member of the family formed with the parent.
As a Step-Parent, you do not have an automatic right to custody or spend-time arrangements if you have separated from the child’s biological parent. You also do not have an automatic right of equal shared parental responsibility of the child. This means that you are unable to:
a) Authorise Medical Care/Make decisions about the child’s health care;
b) Make decisions about the child’s education or sign school forms;
c) Make decisions about the child’s religion;
d) Apply for passports and/or obtain birth certificates.
You can, however, apply to have Parenting Orders put in place, that allows you to spend time and communicate with the child.
The process to have Parenting Orders put in place to allow you to spend time and communicate with the child is:
a) First attempting to negotiate with the biological parent. If your negotiations are successful, an agreement can be made into ‘Consent Orders’. Consent Orders are a binding Court Order that allows you to spend time and communicate with the child. This means that you do not have to make an application to start Court proceedings;
b) If negotiations are unsuccessful, you can attempt Mediation, where you will have an independent third-party present that will try and assist the parties to resolve their issues and come to an agreement. If an agreement is reached at Mediation, again, the agreement can be made into ‘Consent Orders’.
c) If Mediation is unsuccessful, you will need to make an application to start court proceedings. You are able to do this as ‘other people significant to the care, welfare and development of the child’. This is when the Family Court will decide on whether you can spend time and communicate with the child, and have parental responsibility allowing you to make decisions with the biological parent in relation to the child. The Court will determine this based on whether it is in the best interests of the child for that to occur.
The chances of the Court making the Parenting Orders that you are seeking as a Step-Parent are higher with the length of the de-facto/marital relationship and whether you have been involved in the child’s life since separation.
If you are seeking advice in relation to your rights as a Step-Parent after separation, please contact Coutts and speak to our Family Law Team.
For further information contact:
02 4607 2112