Divorce is a complex process, and among the issues associated with divorce, the care of the children is always the most important. Today we discuss the following question: if one party is the child’s step-parent, does that party have parenting responsibility for the child under the law? Does the step-parent have a duty to raise the child? Must that party pay child support? And if that party wishes to see the child or live with the child, what should they do?

Definition of a step-parent

 
Under the Family Law Act 1975, a person is a step-parent of a child only if all of the following conditions are met:

1. they are not a biological parent of the child;
2. they are or were married to, or in a de facto partnership with, a biological parent of the child;
3. they treat, or at any time treated, the child as a member of the family.

About parenting responsibility and parenting orders

A child’s biological parents have legal parenting responsibility for the child, but a step-parent does not automatically have legal parenting responsibility for a step-child. In some cases, a step-parent has a good relationship with the child and plays an important positive role in the child’s upbringing. In such cases, the step-parent can apply to the court for a parenting order to obtain parenting responsibility for the step-child.
A parenting order must be applied for through the court in order to obtain the right to care for the child. A parent who obtains a parenting order may make arrangements for the child’s living arrangements and other matters. Under section 65C of the Family Law Act, it is not only a child’s biological parents who can apply to the court for a parenting order. In addition to biological parents, the following persons may also apply for a parenting order:

1. the child themselves;
2. the child’s grandparents;
3. any other person concerned with the care, welfare or development of the child.

Therefore, a child’s step-parent also has the right to apply to the court for a parenting order.

A parenting order may deal with the following matters:

1. who the child is to live with;
2. how much time the child is to spend with each parent and with other people (such as grandparents);
3. the allocation of parental responsibility;
4. how the child is to communicate with a parent they do not live with, or with other people;
5. any other aspect of the care, welfare or development of the child.

However, a step-parent may only be granted parenting responsibility in special circumstances, for example where the child’s biological parents are not around, or where the court grants the step-parent parenting responsibility in light of the child’s upbringing and welfare. Where both biological parents are still living and able to provide care for the child, the court will first consider preserving the child’s relationship with the biological parents. In short, everything is decided with the child’s best interests as the paramount consideration.

About child support and child maintenance orders

Parents have an obligation to pay for the costs of raising their children under the age of 18, but once a child turns 18, parents are no longer obliged to meet the child’s financial costs. If, after the age of 18, the child is not financially independent, lacks financial support, or has a physical disability or illness, an application may be made for a child maintenance order. The child’s parents, grandparents, or a person caring for the child may apply for such an order, requiring the biological parents or a step-parent to pay the child’s maintenance.

Financially, under section 66D of the Family Law Act 1975, a step-parent is only obliged to pay child maintenance where the court considers that the step-parent should pay maintenance and makes a child maintenance order. Furthermore, the duty of the biological parents to maintain the child is primary, and the step-parent’s duty is secondary; a step-parent’s maintenance obligation does not derogate from the biological parents’ primary responsibility to maintain the child.
In deciding whether to require a step-parent to pay child maintenance, the court will consider the following:

1. whether the step-child is receiving an adequate level of financial support from their biological parents;
2. the length and nature of the relationship or marriage between the step-parent and the biological parent;
3. the relationship between the step-parent and the step-child;
4. how the step-child was financially supported during the marriage or relationship between the step-parent and the biological parent;
5. any special circumstances that would cause unfairness or undue hardship to any party.

How much is the child maintenance amount?

There is no fixed amount when it comes to paying child maintenance. Generally, the court determines and sets the amount based on the child’s expenses and the income of the parents and step-parents. These costs include the child’s everyday accommodation, food, transport, school fees, living essentials, medical expenses, etc. Costs arising from holiday trips and entertainment are not included.

About adopting a step-child

If a step-parent plays an important role in the life of their step-child, the step-parent may wish to adopt the step-child and formally become the child’s legal parent. Generally speaking, adoption will not be approved where a parenting order through the court can adequately address the issue.
The court will only approve adoption of a step-child by a step-parent in special circumstances, for example where the child’s biological parents have passed away, where the biological parents have little contact with the child, or where there are other circumstances showing that adoption is in the child’s best interests.

Final thoughts

The above outlines the issues around step-parents’ responsibilities for step-children in divorce. If you decide to divorce but there is a dispute about raising the children, you can first negotiate arrangements for the children’s care through a parenting order. If a child has reached 18 years of age but still needs financial support, and neither the parents nor the step-parents are willing to pay maintenance voluntarily, you can apply for a child maintenance order to require the parents or step-parents to meet the maintenance obligation. Of course, if the child’s biological parents have passed away or are no longer in contact, and the step-parent very much wishes to live together with the child, an application to adopt the step-child can also be made. In family law matters, remember this principle: everything must be decided with the best interests of the child as the paramount consideration. This is also the first principle the court follows in all matters relating to children. As responsible parents, this is something we must also keep in mind in every aspect of life. If you have any related questions, please consult our specialist lawyers.