When a stepparent or close relative has played an important role in a child’s life, adoption may be the next step in formalising that relationship. In New South Wales, this process is governed by specific legal requirements.
This article outlines the key steps involved in stepparent and relative adoption in NSW, including eligibility, consent, and the court process.
What is Stepparent or Relative Adoption in NSW?
Adoption can be a difficult and overwhelming process, especially when you may be navigating it on your own.
In NSW, the Adoption Act 2000 and the Adoption Regulations 2015 (‘the Regulations’) set out the legal requirements for intrafamily adoptions, including adoption by a stepparent or close relative.
A stepparent is defined as a person who is not a birth parent or adoptive parent of the child but is married to or in a de facto relationship with the child’s parent.
A relative includes a grandparent, aunt, uncle, brother, or sister of the child, whether by blood or marriage, and whether or not the relationship depends on the adoption of the person.
Eligibility Criteria for Adoption in NSW
To be eligible to adopt a child under 12 years of age, certain criteria must be met:
- If the applicants are a birth parent and stepparent, the child must have been in their care for at least two years immediately before the application is filed
- If the applicants are applying as a couple, they must have been living together for at least two years immediately before the application is filed
- The applicants and child must be resident or domiciled in NSW when the application is filed, or for a period of at least three months immediately before the day on which the application is filed
Required Documents for a Stepparent or Relative Adoption
If you meet the eligibility criteria, several documents must be prepared and filed with the NSW Supreme Court, including:
- Adoption Matter Summary Form
- Affidavit Annexing Court Report
- Affidavit of Proposed Adoptive Parents
- Affidavit of two Referees that support the adoption. This Affidavit provides a character reference of the proposed adoptive parent
- Affidavit of Service
- Birth Parent Affidavit
- Memorandum of Adoption Order
- Orders
- Summons
There is typically a Supreme Court filing fee of $1,169 payable at the time of filing the documents.
How the Court Decides Adoption Applications
The Courts follow a guiding principle which states that the adoption must be in the child’s best interests both in childhood and in later life. This is the paramount principle when considering whether the adoption application would be granted. This principle supersedes any other alternative for the child’s care, noting that there are other legal alternatives, such as care or parenting orders, which give the stepparent or close relative parental responsibility for all or some aspects of the child’s care without formal adoption.
Who Must Consent to Adoption?
This may include the non-custodial parent (for stepparent adoption), both parents (for relative adoption), the child, or any person who has parental responsibility for the child.
Consent of adoption may not be required when:
- The court waives this requirement
- In a joint stepparent application, if the person whose consent is required is the proposed adoptive parent
- The child, who is 12 or more years of age with sufficient maturity and understanding, gives sole consent to their adoption
- The child is 18 or more years of age.
If the child is over 12 years of age but under 18 years of age, there is an exception that could be made, which would establish that they do not have cognitive capacity, maturity, or sufficient understanding to give informed consent, or if the child is not in a physical or mental condition to properly consider consent.
How is Adoption Arranged in NSW?
The Adoption Act 2000 (NSW) governs how adoptions are arranged and approved. If the child is living with a parent and a stepparent or close relative, a solicitor can prepare the adoption application. Adoption applications are sent to the NSW Supreme Court in Sydney. A judge will then review all the required documents and decide if it is in the best interests of the child to be adopted. If so, an adoption order will be initiated.
How We Can Assist
If you are considering stepparent or relative adoption, obtaining clear legal advice early can make the process smoother and less stressful.
At Ramsden Family Law, our experienced team can assist you with preparing your application, ensuring all requirements are met, and guiding you through each stage of the Court process.
Please do not hesitate to contact us to discuss your circumstances and best next steps.
The content of this article is intended to provide general guidance on the subject matter and must not be relied on as legal advice. Specific advice should be sought about your specific circumstances.
