Step-children and divorce: What is the law?

Published 21 Nov 2017

When children are involved, even if they aren't your own blood, divorce becomes even more complicated and stressful. Step-parents in NSW might be wondering what would happen to their step-children in the event of divorce - do they still have a right to see the children? Will they be required to pay child support, even though they're not related?

Let's take a closer look at the role step-parents play following a separation or divorce and explain why seeking legal advice might make sense in this kind of situation.

Step-children and family law

Before we look at what divorce means for step-parents, it's important to first identify the definition of being one. According to NSW law, you are a step-parent to a child if you meet all the following criteria:

  1. are not the child's biological parent
  2. are or were married to, or a de facto partner of, one of the child's biological parents
  3. treat (or treated while you were together) the child as a member of the family you formed with the biological parent.

Unless you file for a parenting order, legal guardianship or adoption, you aren't legally viewed as a parent to the children. What happens, however, if the relationship breaks down? In some cases, your ex partner might be asking for child support payments for children that aren't your own but that you cared for when the two of you were together. Perhaps, conversely, you wish to file for custody of the children if you think their safety may be in jeopardy with their birth parent.

Ultimately, it's up to the Parramatta Family Court to decide what is best for the children. Like anyone with a relationship to the kids, step-parents are free to file for parenting orders - this isn't a guaranteed win by any means, but it's a chance at least.

What if my ex partner has passed away?

If your partner has passed away, custody of their children will automatically pass to the other birth parent unless you have some sort of legal guardianship. As always, you can apply for a parenting order if you believe the children will be better off with you than their other birth parents. However, doing so is very tricky, and you'll need to prove to the court exactly why you (as a step-parent) would be a better guardian.

In these cases, it pays to seek the help of a Parramatta family lawyer who can help advise you on your rights and responsibilities as a step-parent. For more information, reach out to one of our experienced legal specialists at Malouf Solicitors today.

Please call us on 02 8833 2000 to speak with a lawyer

I would just like to say thank you to Anthony who assisted my son in his matter. He is a first home buyer and was pressured into signing a contract prior to obtaining legal advice. The contract was certainly was not the normal straight forward type. To be able to obtain the help and assistance he did from Anthony and rescind the offer the next day, was wonderful. We were able to have a stress free Christmas. I am unable to thank him enough for this. My son and our family will be contacting Anthony when we find the next property.
Kim of Sydney

Parramatta Office:

Level 5/146 Marsden Street
Parramatta NSW 2124

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Parramatta NSW 2124

Phone: 02 8833 2000
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