Families come in many forms, and step-parents are an increasingly common component of the modern family structure. The relationship between a step-parent and a step-child can be strong, and more often than not, a step-parent can play a vital role in the child’s life. But what happens to this parent/child relationship in the event of a divorce? The laws for determining the custody rights in Australia for a biological parent do not apply to step-parents. So, what custody rights do step-parents have?

What is a Step-Parent?

To determine a step-parent’s custody rights in Australia, we must look at what a step-parent actually is. Under Section 4 of the Family Law Act 1975, a step-parent is a person who:

“a) is not a parent of the child; and
b) is, or has been, married to or a de facto partner (within the meaning of section 60EA) 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.”

The definition of a step-parent also includes same-sex couples in a de fact relationship.

Does a Step-Parent Have Legal Parental Responsibilities?

Parental responsibilities refer to all duties, powers and responsibilities that a parent has concerning their child.

While a step-parent often performs parenting roles, they do not have a right to share parental responsibilities or custody rights in Australia. This is because no legal relationship exists between the step-parent and step-child.

As a result of this, a step-parent is not legally able to authorise medical care, sign school forms, obtain legal documents such as birth certificates or apply for passports. However, there is an exception should an emergency medical situation occur: if neither of the child’s biological parents is available, a step-parent may be asked to give consent for a procedure. It is also important to note here that after the biological parents separate, they still share parental responsibility unless one parent asks the court for sole responsibility.

Is a Step-Parent Required to Pay Child Support?

It is the primary duty of the biological parents to financially support the child. In certain circumstances, the court can order a step-parent to pay child support. When deciding whether a step-parent should pay child support, the court will look at:

• the level of financial support from the child’s biological parents;
• the length and type of relationship between the step-parent and the child’s biological parent, and how that child was financially supported during the relationship; and
• the relationship between the child and the step-parent.

How Do I Get Custody Rights in Australia as a Step-Parent?

For a step-parent to gain any custody or visitation rights of a step-child, the first step is to try to reach an agreement with both biological parents. If an agreement cannot be made, a step-parent can apply to have parenting orders put in place.

Under Section 64B of the Family Law Act 1975, a parenting order may deal with a wide variety of custody rights in Australia, such as living arrangements, time spent with the step-child, maintenance and allocation of the some parental responsibility. Step-parents can apply to the Family Law Courts for a parenting order as ‘other people significant to the care, welfare and development of a child’. A parental order is usually made with the agreement of the child’s biological parents.

To determine whether or not a step-parent should have any parental responsibility, the court will make a decision based on the best interests of the child. The court’s primary position on shared parental responsibility generally exists between the biological parents of the child. A step-parent may only be given parental responsibility in special circumstances, for instance, if the biological parents aren’t available or there are concern’s for the child’s welfare.

Seek Legal Advice for Custody Rights in Australia

Custody rights in Australia can be complicated, particularly for step-parents going through a divorce. If you believe you have the right to shared parental responsibility of your step-child, please contact the team at Emerson Family Law. We specialise in children’s matters as well as divorce and separation law.