Adoption is the process where a parent's legal rights for their child are transferred to another person. The formal adoption of a stepchild or close relative is known as intrafamily adoption.
Legal framework
In NSW, the adoption process is governed by the Adoption Act (the Act) and the Adoption Regulations (the Regulations). Throughout the adoption process, the law recognises the importance of maintaining a child's ties to their birth family and cultural heritage whilst emphasising the best interests of the child. The legislation further outlines requirements and procedures for all types of adoption, including overseas and intercountry adoptions and for those that occur within the family.
The Department of Communities and Justice (DCJ) is the State Government Department responsible for overseeing adoptions in NSW. Adoption orders are made by the Supreme Court of NSW (the Court).
Requirements for intrafamily adoption
Who can adopt?
An application for an adoption order can be made by either one person or a couple. Intrafamily adoptions enable people who play a significant role in the child's life to legally adopt them. For example: step-parents, grandparents, aunts and uncles and in some cases, siblings.
Pursuant to the Act, the basic requirements to be an eligible applicant are:
- The applicants are residents or domiciled in NSW and present in NSW at the time of the application;
- The applicants are of good repute and are fit and proper persons to fulfil the responsibilities of parents;
- The applicants must be 21 or more years of age and a minimum of 18 years older than the child; and
- If the applicants are in a relationship, that the applicants have been living together for a continuous period of not less than two years immediately before the application for the adoption order.
Who can be adopted?
Under section 24 of the Act, an adoption order can be made for a child who is younger than 18 years of age on the date the application is made, or for a child under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act. An adult over the age of 18 may also be adopted in circumstances where they were cared for by the applicant/s.
Additionally, the Court will only consider making an order in favour of a step-parent if the following conditions are met:
- The child is at least five years old;
- The child has lived with the step-parent for a continuous period of two years immediately prior to the application;
- The step-parent has obtained specific consent by the appropriate persons, such as a biological parent or any person who has parental responsibility for the child; and
- The Court is satisfied that the adoption is in the child's best interests.
The adoption process
The process to adopt can be a complex, tedious and expensive process, as a result of the stringent requirements the Court considers. For this reason, it is essential to familiarise yourself with the NSW laws governing the process during this emotional time.
To commence the adoption process, the adoptive parents must file an application with the Supreme Court of NSW. A typical application will include:
- Summons for Adoption;
- Minute of Order setting out the Orders sought for the adoption of the child;
- Memorandum of Adoption Order, setting out the child's particulars, birth parents and adoptive parent/s;
- Affidavits of the adoptive parent/s, detailing their relationship with the child, living arrangements, financial circumstances and why they believe the adoption is in the child's best interests;
- Affidavits of the birth parent/s, indicating their consent to the adoption (if possible);
- Affidavits of two referees, detailing their views through anecdotal evidence as to the character of the adoptive parent/s;
- Consent to Adoption form, if the child is above the age of 12, indicating the child's consent to the adoption; and,
- Adoption Plan setting out how the adoptive parent/s intend to keep the child connected with their birth parents, culture and background. This document must be consented to by the birth parents and adoptive parents before filing.
In addition, the parties must obtain a report from an approved Contracted Adoption Assessor regarding the proposed adoption. The report will evaluate the reasons for the proposed adoption, the relationship between the child and the adoptive parent/s, the role of the adoptive parent/s, the eligibility of the adoptive parent/s, and the advantages and disadvantages of the adoption for the child.
The Court will then make a decision, determining whether the adoptive parent/s are suitable and whether the proposed adoption is in the child's best interests. This may occur after several Court attendances.
Effect of an Adoption Order
Where the Court is satisfied that the prospective parents are suitable adoptive parents and that placing the child in their care is in the child's best interests, the Court will make an Adoption Order.
An Adoption Order terminates the legal relationship between the child and their birth parents whilst recognising, at law, the adoptive parents as the parents of the child. Therefore:
- The child holds the same rights to the adoptive parent/s as a child born to the adoptive parent/s. This includes a right to inherit property of the adoptive parent/s;
- The adoptive parent's have the same parental responsibility of the child as a parent of a child born to the adoptive parent/s; and
- The child will be legally recognised as a child of the adoptive parent/s.
Once an Order is made, the Court will notify the NSW Registry of Births, Deaths and Marriages for an amended birth certificate of the child, naming the adoptive parent/s as the parent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
