Step-parents: parental rights and responsibilities or adoption?

When you live "in-family" with the child of your spouse, civil partner or cohabitant, it is likely that you will take on a parenting role. 

The legal rights and responsibilities of a step-parent are not, however, the same as a biological parent. Many people assume that they obtain certain rights in respect of children automatically when they marry the biological parent of that child. This is a common misconception. No automatic rights are obtained by the step-parent in respect of a child when the biological parent of that child marries, enters into a civil partnership or cohabits.

Obtaining parental rights and responsibilities as a step-parent

Any person can make an application to the court to obtain parental rights and responsibilities in respect of a child. The paramount consideration for the court when deciding whether to make such an order is whether it is the best interests of the child to do so. Obtaining parental rights and responsibilities for a step-child means that the step-parent would have the right to be involved decision making which affects how the child should be raised. This can include making decisions regarding which school they should attend and where they will live etc. These rights and responsibilities are set out in section 11 of the Children (Scotland) Act 1995. An application by a step-parent for parental rights and responsibilities does not remove the parental rights and responsibilities of the child's biological parents. Situations commonly arise where three or more people have parental rights and responsibilities in respect of the same child and must work together to raise that chid.

What criteria must be met to adopt a step-child?

In contrast to obtaining parental rights and responsibilities, adoption by a step-parent extinguishes the parental rights and responsibilities of the child's biological parent, but not those of the biological parent with whom the step-parent is in a relationship. To apply for an adoption order, the step-parent must be aged 21 or over and the step-child must be under the age of eighteen. It is also a requirement that the step-parent seeking to adopt is in an "enduring family relationship" with a biological parent of the child. This means that the step-parent and the biological parent of the child who is to be adopted must either be married, in a civil partnership or in a committed long-term relationship.

What to expect

The child themselves should also be consulted regarding the adoption and given an opportunity to express their views. If the child is over the age of twelve, the court will need the child's consent before it can grant the adoption. If the child is under the age of twelve and expresses a clear view about the adoption, then the court will take this view into account. The weight that the court will assign to the child's view will depend on the child's age and maturity.

Any person who already holds parental rights and responsibilities will also be asked if they consent to the adoption. This means that the applicant's, spouse, civil partner or cohabitant will be asked to formally consent as will any other biological parent of the child. The consent of a biological parent may be dispensed with if they have died; cannot be located (and evidence is led to satisfy the court that genuine attempts have been made to locate them); or if the court determines that it is in the child's best interests to dispense with the biological parent's consent.

The adoption process

Step 1: The first stage of the process of adopting a step-child involves notifying the local authority of the intention to adopt. The local authority which requires to be notified will be the local authority in which the child resides. A social worker will be appointed to conduct a home visit and meet with the applicant and their spouse civil partner or cohabitant and with the child. They will also meet with anyone else who has parental rights and responsibilities in relation to the child. They will then prepare a report for the court confirming whether they are supportive of the adoption. This report must be lodged with the court alongside the adoption petition.

Step 2: The court will appoint a curator ad litem who will also visit the prospective adopter's home and prepare a report for the court. A curator ad litem is usually an experienced solicitor, practising in family law whose primary duty is to safeguard the interests of the child. The curator will speak to the prospective adopter, their spouse civil partner or cohabitant, the child and any other biological parent of the child if they are prepared to be interviewed. The court will also fix a preliminary hearing by which time the curator's report should be lodged with the court. The prospective adopter's solicitor will be required to notify anyone with parental rights and responsibilities about this preliminary hearing and when it will take place. Biological parents will be given the opportunity to tell the court if they object to the adoption being granted and the reasons for any objection.

Step 3: The curator will lodge their report in advance of the hearing and the court will consider the recommendation of the report.

Step 4: If the report recommends the adoption order is granted and the biological parent of the child has not objected to the application then the court can grant the adoption order at the preliminary hearing. If a biological parent has objected to the adoption order, an evidential hearing (called a proof) will be fixed. Evidence will require to be led, and arguments made in front of a Sheriff about why it is in the child's best interests that an adoption order is made. Evidence will also be heard to in support of the biological parent's objection to the adoption. The court will then decide whether or not to grant the adoption order. If granted, the court will also determine whether there ought to be any ongoing contact between the child and their biological parent.

Step 5: Once the court has granted the adoption order it will send the child's birth certificate to the Registrar General. The court will ask the Registrar General to update the child's birth certificate to include the adopter as the child's parent along with their spouse and partner. The adopter will then be contacted by the Registrar General when the birth certificate has been updated.

What is the effect of an adoption order?

The granting of an adoption order removes the parental rights and responsibilities previously held by the other biological parent (the one who is not in an enduring family relationship with the applicant). An adoption order also confers those rights and responsibilities on the step-parent and puts them in the position as if they were the child's biological parent. This means that once the order is granted, the adoptive parent has full rights and responsibilities in respect of the child. The rights exist to permit the parent to discharge their responsibilities towards the child. Upon the death of the step-parent, the child has same entitlement to make a claim against the step-parent's estate as their biological children. The child will have lost the right to make any claim on the estate of the biological parent who is not in a relationship with the adoptive parent.

Our lawyers understand how difficult the process can be and aim to make it as straightforward as possible. To speak to one of our adoption experts, please get in touch.