How do I legally adopt a child within my family in NSW?

Published 30 Nov 2018

Modern family arrangements such as surrogate parenthood, de facto partnerships and intrafamily childcare make this area of law complex. A particularly sensitive area of family law is adoption, especially when it comes to taking legal guardianship of a child within your own family. How does this work in NSW and what legislation affects intrafamily adoption?

What does intrafamily adoption cover?

Legally adopting a child within your family means assuming legal guardianship for a child of:

  • Relatives such as a sibling or parent.
  • A current intimate partner.
  • Former marriage or de facto partners.

The same regulations governing who can legally adopt a child in NSW apply when attempting to assume guardianship of a dependent within your family. These include that:

  • The adoption is in the child's best interests.
  • The child in question is under the age of 18 at the time of application or was under the care of the family applicant prior to turning 18.
  • Both the child and applicant reside within the state.

What are the limitations on intrafamily adoption?

A step parent or family relation through an intimate partnership is limited in their ability to adopt by terms laid out in the Adoption Act 2000. This stipulates that a child cannot be adopted unless:

  • He/she is at least five years old.
  • Has lived with the applicant for two years immediately prior to the adoption request.
  • Consent has been given by the appropriate guardianship party.

Similar legislation restrictions are placed on relatives of the child in question, specifying the court cannot make an order under the Adoption Act 200 unless the relative:

  • Is a direct relation, such as a grandparent, aunt, uncle or sibling.
  • Has had a stable and ongoing relationship with the child for two years prior.
  • Consent for adoption has been given by the appropriate guardianship party.

However, these terms can be overruled in circumstances in which the move is definitively in the best interest of the child and there is no better circumstance possible through NSW law.

Are intrafamily adoption cases successful?

Achieving a favourable outcome in an intrafamily adoption case often depends on the circumstances of the case itself as there is little clear-cut precedent in NSW case law. Application of A & B (2000) is an example of a successful intrafamily adoption case after the judge ruled in favour of an adoption order for parents who conceived a child through surrogacy. The surrogate mother (the applicant's sister) freely gave her consent to pass on guardianship and the adoptive parents had looked after the child for two years prior to the application, fulfilling all legislative requirements for adoption.

Adopting a child from within the family is often considered a good option as there is usually a pre-existing relationship between applicant and child. However, a case can still become complicated through any number of circumstances. For expert legal guidance through the adoption process, reach out the Malouf Solicitors today.

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

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