VIC Adopting Husband's Love Child?

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26 April 2014
This may be a rather strange question but is it possible for me to adopt a step-child (adoption Australia) that I've raised from birth?
My husband and I separated for a few months and he got another woman pregnant. I can't have a child myself and she didn't want to raise a child but didn't want to abort, so she put my husband on the birth certificate and basically gave him the child to raise. She would be happy for me to adopt and she lives in another state so she never sees or has contact with the baby. But I've heard it's a hard process in Victoria to adopt even if it is a step-child you have raised from birth. Would it be easier to apply for guardianship or parenting order? I would prefer to adopt my husbands child if possible.


Well-Known Member
8 April 2014
G’day Emma

How old is the child? If the child is old enough to understand the benefits and consequences of adoption and have an opinion on what they want, then that would have to be taken into account.

The Department of Human Services Victoria has a great publication “Step Children and Adoption" that explains the legal situation regarding step children and adoption in Victoria that I think will address your questions.

Under the adoption laws, the Court can only make an order for the adoption of a stepchild when:
1. An Adoption Order would make better provision than a Family Court Order for the welfare and interests of the child.
2. Exceptional circumstances exist which warrant the making of an adoption order. (The examples given in the DHS publication is: where the non-custodial parent is deceased or has been totally absent from the child’s life for many years. Usually a combination of major
circumstances is required to meet this requirement.) You would need to set out these circumstances although you’ve said that the birth mother would consent and doesn't have any contact with the child, so that is a good indicator. But note that adoption would also sever the tie with any grandparents on the birth mother's side and any inheritance from the birth mother and those grandparents.

So yes, adoption of your step child is not an easy/quick process and will be available only where a family court orders are inadequate to define the rights and responsibilities of a step-parent, and inadequate to provide reasonable legal security for the child and those providing parenting for the child.

In terms of Family Law Court avenues if you don't think you meet the adoption criteria:
You can get a consent order (if the birth mother would agree to an agreement about parenting arrangements for the child).

Using the Family Court's Consent Orders kit, you can write up an agreement and ask the Family Court to make 'consent orders' in the terms of your agreement (without having to attend court). Your agreement may include information about:
  • whether the parents are to have equal shared parental responsibilities or specify the division of parental responsibilities between them
  • whether the child will spend equal time with each parent or substantial and significant time with a parent and specify details of how the child will spend time with each parent (see section 65DAA of the Family Law Act for what is meant by substantial or significant time)
  • the time a child will spend with you as the step parent and other relatives
  • the communication a child will have with another parent or person
  • if two or more persons share parental responsibilities, the form of consultation required between the persons
  • any aspect of the care, welfare and development of the child, including education, health, religion and cultural aspects

The Court must be satisfied that the orders you ask for are in the best interests of the child. You can read more about the best interests of a child by going to the Family Law Principles page.

If you can’t agree on arrangements with the birth mother, you can apply to the Family Court for a parenting order.

The Family Court may grant parenting orders, which include arrangements about where and with whom a child lives and has contact with. The Family Court preserves the child’s legal ties to both birth parents and their families while acknowledging the child’s new situation. Before you apply to the court you must make a genuine effort to resolve the matter by family dispute resolution.

I hope that gives you more useful information to determine whether adoption is the best option. Even if adoption isn’t, you can arrange a family court order to acknowledge legal relationship with your step child.