Being a parent is about more than biology, but in the eyes of the law, proving that can take years, paperwork, and sometimes a trip to the Family Court. Photo: kupicoo.
What makes someone a parent? For many modern families, the answer isn’t simply biological. Stepparents, same-sex couples and those who’ve built bonds outside traditional structures sometimes turn to adoption to recognise those relationships in law.
In the ACT, most adoptions are handled by the Community Services Directorate, which includes Child and Youth Protection Services and the Office for Children, Youth and Family Support.
Courts and lawyers step in when there are legal rights, court orders or complex family dynamics to address — and there are plenty of those.
As James Drury of DDCS Lawyers points out, even for one of the most common cohorts — stepparents — it’s rarely as straightforward as just wanting to make it official.
“A stepparent A stepparent seeking to adopt their stepchild (who is under 18) must be given leave by the Federal Circuit and Family Court of Australia (FCFCOA) to apply,” he says.
“At a policy level, this prevents stepparents from coming in over the top of biological parents following separation and blended families.
“The FCFCOA will only grant leave where an adoption is in the child’s best interests. The same factors guide the Court as any other parenting order — and it’s a high bar, as the biological parent who isn’t the stepparent’s partner will lose parental responsibility on adoption.”
Many stepparents persist despite the challenges. Mr Drury says it’s often about more than formalising a good relationship, such as securing parental rights if the biological parent dies.
“A stepparent doesn’t automatically have parental responsibility for the child after the non-biological parent’s death,” Mr Drury says.
“If they’ve legally adopted the child, however, they have the same rights and responsibilities as with any biological child.
“If the other biological parent survives, the stepparent may need to negotiate or resolve parenting arrangements with them.
“In these cases, where adoption isn’t feasible, a stepparent may apply for parenting orders under the Family Law Act as a person concerned with the child’s care.”
DDCS Lawyers’ James Drury says adoption law continues to evolve with modern family structures, but the child’s best interests always come first. Photo: DDCS.
Adoption law has evolved with changing family structures.
Still, for same-sex couples, it’s not always the first or best option.
“For obvious reasons, most presumptions for parentage are set out for births between a man and a woman,” Mr Drury explains.
“For same-sex couples, the simplest way for a non-biological parent to be recognised is by being listed on the birth certificate (usually in surrogacy cases).”
But surrogacy brings its own complexities — especially the tension between human factors and the law.
“A surrogacy agreement will need to be recognised by the courts,” Mr Drury says. “Once recognised, the court can make a parentage order and the child becomes the child of the persons in the agreement (that is, the genetic and non-biological parents).”
“The effect of a parentage order is much like an adoption order; the birth parent ceases to be the child’s parent.”
But what if the surrogate mother changes her mind after the order is made?
“The surrogate may need to apply for parenting orders in the FCFCOA as a non-parent concerned with the child’s care,” Mr Drury says.
Other considerations include the impact of adoption on estates.
“In seeking adoption, a child might sever claims with their biological parent they’d otherwise be entitled to, as they’re now the child at law of the adoptive parent,” Mr Drury says.
For all the legal twists and turns, one principle never wavers: adoption is only ever granted when it serves the child’s welfare.
For families navigating blended households, surrogacy or same-sex parenting, it means thinking not just about what feels right today, but how best to protect relationships in the long run.
“The court must always be persuaded that adoption is in the child’s best interests,” Mr Drury says. “That consideration underpins every application.”
For more information and professional advice, visit DDCS Lawyers.
