Rights and Obligations of Non-biological Parents

Families today come in many different forms. Many children are raised by step-parents, same-sex parents, or other carers who are not their biological parents. If you are in this situation, you might be wondering: “What are my rights and obligations? Where do my rights end, and where do my obligations begin?”.

The answer can be complicated, and often depends on a number of factors, including your relationship with a child, whether you are legally recognised as a parent, and what arrangements are in a child’s best interests.

Under Australian family law, meeting the best interests of a child is the overarching and foremost objective.

Decisions about parenting or financial support are focused on what will provide a child with safety, stability, and wellbeing. Biology is only one factor, and whilst it is an important factor, it is not a limiting one. This is because pursuant to section 65C of the Family Law Act 1975, any person “concerned with the care, welfare or development of the child” can apply to the Court for Parenting Orders.

Therefore, if you have played an important role in a child’s life, the law may recognise your involvement and give you a say in decisions about their care. The Court may decide to preserve your relationship with a child if this benefits their wellbeing, and this can include making Orders about communication, contact, or even decision-making.

While parenting rights are determined by what is in a child’s best interests, child support obligations are more tightly bound to biological and legal parentage.

Child support is typically payable by the legal parent. This usually (but not always) means the biological parent. The Child Support (Assessment) Act 1989 allows Child Support (Services Australia) to assess and collect child support from someone deemed the legal parent, and legal parentage can be established by:

• The names which appear on the birth certificate.
• A Court’s declaration of paternity.
• A legal presumption (for example, marriage to the mother at the time of birth).
• DNA testing

A man who is not the biological father but is incorrectly listed on the birth certificate may still be required to pay child support, until paternity is legally disputed and corrected.

Generally, step-parents are not automatically liable to pay child support, however, in some limited circumstances, a step-parent may be ordered by the Court to provide financial support pursuant to section 66M of the Family Law Act 1975, especially when:

• They were significantly involved in the child’s upbringing.
• They contributed financially for an extended period.
• The biological parents are unable to meet the child’s financial needs.

Such orders are discretionary, and only made if the Court believes it is just and equitable in the circumstances.

If a parent has paid child support under the belief they were the biological father, but later discovers they are not, they may apply for a declaration of non-paternity, a cessation of future child support liability, and in some cases, reimbursement of payments.

The latter outcome is difficult to obtain, however, as the High Court has held that these cases can disrupt a child’s financial security and relationships, and can cause “financial, emotional and psychological harm”, which is antithetical to meeting a child’s best interests.

If paternity is in question, timely legal advice and decisive action is essential

To summarise some common situations:

• Step-parents do not automatically have parental rights, but they can apply for Parenting Orders. In some cases, they may also have financial obligations.
• Same-sex parents may be legally recognised as parents if they consented to assisted reproduction. This brings both rights and obligations.
• Grandparents or other carers who step into a parenting or caretaker role can also apply for Parenting Orders, if it benefits the subject child.

If you are raising or supporting a child who is not biologically yours, it is important to understand your legal position and take steps to protect both your rights and the childs.

Berry Family Law have extensive experience in dealing with these matters.  If you are unsure about where you stand, our experienced family lawyers are here to advise you.