A common question from step parents after separation is about their rights to see their step children following separation. Often a deep emotional bond develops between step parents and the children they have helped to raise during the years that they were in a relationship with their mother or father.
Like everything in Family Law most things are possible if agreement is reached. That extends to the situation with step-parents. There is no barrier to you seeing them with permission but without it things get difficult.
What is the definition of a Step-Parent?
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 spend-time arrangements if you have separated from the child’s biological parent.
You do not have automatic rights
You do not have automatic spending time rights or the right of shared parental responsibility for a step-child. This is automatic for biological parents and can be applied for through the family court for other caregivers. Shared parental responsibility means being able to:
a) Authorise medical care and 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.
Spending Time Arrangements
If the situation is amicable, especially if there are biological and step-children, the issue of spending time may be resolved by talking it through. In many more situations step parents and step children lose contact while they are children and may or may not reconnect when the children reach adulthood.
There is the option to try Family Dispute Resolution to negotiate an arrangement which can be used to apply for Consent Orders which are a Parenting Orders indicating how you are to spend time and communicate with the child. Grandparents and any other person concerned about the care, welfare and development of a child can apply for a parenting order for a child.
Parenting Orders can be by consent of all biological parents or by a court application. Both biological parents and any other person who the court has given parental responsibility to would have to be included in the case. The order that is recommended in trying to get an arrangement in place to see and spend time with step-children is:
- Negotiation – if you can reach an agreement with the biological parents by negotiation. If you reach an agreement that can be made into Consent Orders. Consent Orders are an administrative process and you don’t have to go to court to get a consent order.
- Family Dispute Resolution – if you can’t reach an agreement by direct negotiation you would need to attempt Family Dispute Resolution. A FDR Practitioner is an independent third party who will help you to discuss the issues, consider options and if possible help you to come to an agreement. If an agreement is reached you can apply for Consent Orders.
- Lawyer Negotiation – your next option is to see if a lawyer can assist with communicating your desire to spend time with your step children after separating from their parent. Lawyer negotiation often occurs by letters and sometimes phone calls between the respective lawyers. If an agreement is reached you can apply for Consent Orders.
- Arbitration – family law arbitration is less common and is voluntary unless ordered by a court. In arbitration, both sides agree to be bound by the decision of the Arbitrator who is an independent third party, knowledgeable in the relevant law such as a retired judge or senior barrister. The arbitrator will consider the evidence presented by each side and then make the decision for you.
- Family Court – if mediation and lawyer negotiation is unsuccessful and arbitration isn’t agreed to the final option to be able to spend time with step children following separation is to start Family Court proceedings. A step-parent isn’t specifically mentioned in those who can apply for Parenting Orders but you do fit into the category of ‘other people significant to the care, welfare and development of the child’. The judge in the Family Court will decide on whether you can spend time and communicate with the child and also whether you should 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 a longer de-facto / marital relationship and whether you have been involved in the child’s life since separation.
This publication by the Australian Attorney Generals Department contains more information about Parenting Orders. https://www.ag.gov.au/families-and-marriage/publications/parenting-orders-what-you-need-know It doesn’t specifically mention step-parents but explains what Parenting Orders are in detail.
Where to from here?
It is really important that you get legal advice before progressing further if you are a step-parent trying to get spending time or communication arrangements in place with your step-children if your former partner or the child’s other biological parent is resistant to the idea.
You don’t have an automatic right but if you can show that it is in the child’s best interest to maintain the relationship with you then you may be supported by the family court with Parenting Orders that give you that legal right.
Getting Legal Advice
We have a small panel of lawyers who may be able to assist with legal advice however you can contact any specialist family lawyer to discuss your situation. The type of information they will need from you is:
- how long you were in a relationship with the child’s biological parent
- how long ago you separated
- what financial or other support you’ve provided during the relationship and since separation
- their response to your desire to continue in contact with your step-child
- the response of the other biological parent, if they are still in the child’s life
- what you have done up to that point to try to get an agreement
- what you want
- what contact you’ve had since separation
- anything else you consider relevant
Remember that when you are seeking legal advice it isn’t a therapy session. Try to be as clear and concise as you can so the lawyer can get the full picture of your situation and give you accurate advice.
Family Dispute Resolution
If you have been advised to try and negotiate an agreement we would be able to assist you with Family Dispute Resolution. The first step is to undertake a confidential pre-mediation risk screening and preparation session. In cases such as this we would often contact the biological parents first to determine if they agree to participate. Family Dispute Resolution is a voluntary process.
Find out more about Family Dispute Resolution