Adoption by Spouse or Natural Parent or Relatives

Step-Parents: Known Child Adoptions

Many couples who enquire about adopting a child born to one of them, or born to a relative of one of them, are really seeking to bring about a change in the child’s legal name rather than become involved in the process of adoption. They may, in error, believe that adoption is the only way in which this can be achieved. A change in surname through the Births, Deaths, and Marriages Registry is a much simpler process and one which does not attract the sometimes complicated consequences of obtaining or seeking an order of adoption. It should be remembered that the copy of a birth certificate will show the child’s original name, together with the entry recording the change of name.

Where a custodial parent marries or is in a relationship with a person other than the child’s other biological parent, and they wish to achieve more than change the child’s legal name, adoption may still not be the most appropriate course. It is desirable for them to give careful consideration to the effects of adoption. After adoption, not only does the child cease to be the child of the original non-custodial parent but the adoption order terminates the child’s relationship with all the other relatives forming part of the child’s extended family on the side of the non-custodial parent. At the same time the children would acquire a new set of grandparents and other relatives arising out of the relationship created by the adoption between the children and the person who would now be their adoptive parent.

It is necessary for those who seek such adoption orders to give careful consideration to whether or not the termination of such relationships will benefit the child.

The making of adoption orders in favour of a spouse of a natural parent or relative is restricted by specific requirements (ss20 and 21, Adoption Act). The consent must be a specific consent for adoption by particular parents (ss29 and 33(2)), and the application may only be made by the Secretary (s18).

Where a spouse of a natural parent is seeking to adopt his or her spouse’s child of a previous marriage, it is necessary to obtain leave from the Family Court of Australia before an adoption application proceeds. If leave is granted this does not necessarily mean that the Secretary of the Department of Health will support a subsequent adoption application, or that the court will make an order if it is not satisfied that the specific requirements of the Act are fulfilled (s24).

There is no prohibition on private placement of children with relatives of the child. Where, however, the couple wishes to adopt the Secretary must make the application to the court. It is wise for the applicants to discuss this matter with a solicitor and with the Department of Health as in many cases a custody or guardianship arrangement such as a parenting order may be more appropriate, and less costly, than adoption to secure the child’s welfare.

If the spouse of a natural parent of a child, or a natural relative of a child wishes to proceed with an application to adopt, they must satisfy the prescribed criteria and go through the same assessment and approval process as any other applicant for adoption.

In some instances, families who have raised the child may decide to wait until the child turns 18 before an application is made (s19(1)(b)). However, if a child is not adopted by the family until after 18 years of age, and the child (now an adult) is or has been married, they cannot be legally adopted.

Spouses or Relatives

The spouse of a natural parent of a child, or a natural relative of a child, may wish to  formally become the parent of the child. ‘Spouse’ is defined to include the other party to a significant relationship which is registered under the Relationships Act (Tas) 2003. This means that a child may be adopted by the partner of his or her parent or by relatives, regardless of whether the partners or relatives are a same sex couple or a heterosexual couple. The relationship must be of at least three years duration and be registered at the time the adoption order is made.

Same-sex Adoptions

Same-sex adoption is currently the focus of a campaign in Tasmania to change the law around adoption to allow same-sex couples to access domestic and intercountry adoption procedures on equal footing with married, heterosexual couples. Same-sex couples are currently denied the right to marry, and thus cannot adopt as the legislation does not permit unmarried couples to apply to adopt, except in the ‘step parent/known child situation.

Currently, same-sex couples can access the ‘known’ child adoption mechanism, which is the process detailed under Step-parents – ‘known’ child adoption. Section 20(2A) of the Adoption Act only allows a party in a same-sex relationship to adopt the child of their partner, where their partner is the natural or adoptive parent of the child, or where they or their partner is a relative of the child.

However, under the Status of Children Act (Tas) 1974, section 10C(1A), where a woman is in a significant relationship with another woman and, with the consent of that other woman, undergoes a fertilization procedure as a result of which she becomes pregnant, the consenting woman is, for the purposes of the law of the State, to be treated as if she were the parent of any child born as a result of that pregnancy. This means that the adoption process is not necessary where a lesbian couple have a child by IVF together. If the child is born before the couple begin a relationship, the same-sex adoption procedure will apply.

The Court’s Attitude

The court’s adoption practices are an important factor in the administration of the Adoption Act 1988 (Tas). The courts have recognised that there is strong evidence to support the policy that children have a right to know that they are adopted. This applies to children adopted in the conventional sense of the word as well as those adopted by spouses of natural parents or relatives. The court recognises the potential trauma and/or damage to a child resulting from accidental or malicious disclosure by other persons. Adoption is a matter to be discussed with the child by those closest to him or her, who know the proper circumstances of the child’s background and who will assist in a most tactful and constructive way.

As a result, the court will not, as a rule, approve or make an adoption order for a child in the care of proposed adoptive parents unless the court is satisfied that the adoptive parents intend to start the process of informing the child of his or her status while the child is young. If the child is no longer young the court will have to be satisfied that this process has begun.

A similar issue affecting the adoption in natural and relative cases is the severance of, or the maintenance of, the relationship or contact between the child and the original parents. The question is particularly relevant to cases where the original parents were divorced or where the child is to be adopted by the parents of the natural mother. This issue also arises quite frequently where the original mother is very young at the time of the child’s birth.