VIC Legitimacy of step children under Marriage Act

[Familylaw101]

Hi,
Just wondering if a step parent has rights to children under legitimacy within the Marriage Act. The children's parents were never married previously. Does that make them the stepparents children under marriage?

Thank you in advance.

 

[sammy01]

for what purpose?
I think the family law act is more relevant, but it depends on why your asking.

 

[Familylaw101]

for what purpose?
I think the family law act is more relevant, but it depends on why your asking.

I just want to know if the step parent has rights. I spoke with a barrister who once told me that if the mother of the two children was not previously married to the biological father then they become the step fathers children under marriage.

I know state laws vary and step parents have no rights or hardly any in many ways which is somewhat absurd considering the hard work many do as a father even filling those shoes of the biological father but I'm just wondering in a sense whether the marriage act or somewhere else if a step parent has rights by marriage if there was no previous marriage in place and neither the step father or the mother were ever previously married.

 

[Tremaine]

You just want to know if the step-parent has rights to do what? Apply for child support? Apply for parenting orders for child custody and parental responsibility? The objective determines the applicable legislation, so maybe you'll get more helpful answers if you can clarify what you're aiming for.

In any case, what the barrister has told you about the parentage of children is either wrong or more likely misinterpreted. There are circumstances in which a man is presumed to be a child's father under law, but being a step-parent in circumstances where the woman was never married to the biological father is not one of them. Except by way of adoption, there are no circumstances which elevate a step-parent to the status of parent, including the mother's marital status preceding the relationship.

In Australia, all states/territories have referred their family law powers to the Commonwealth with the exception of WA, so the law is the same across the country. The difference for WA is that it has its own Family Court, and it also operates under separate legislation for de facto matters, whereas for the rest of the country, the FamCA/FCCA deal with all family law matters under the Family Law Act (including de facto).

For step-parents specifically inquiring about child support or custody, this is the situation:

• A step-parent does not have any obligation to pay child support except where neither biological parent has the financial capacity to support their children;
• Anyone concerned with the child's care, welfare and development (including step-parents) can apply for parenting orders. The Court must first be satisfied that the applicant is a genuine person concerned with the child's care, welfare and development, and then that whatever orders it makes in relation to that person are in the best interests of the children.

Hope this helps.

 

[Familylaw101]

You just want to know if the step-parent has rights to do what? Apply for child support? Apply for parenting orders for child custody and parental responsibility?

If under marriage initially if a step parent has rights such as being able to sign for stuff that the biological parent would need to sign etc.

The biological father unfortunately refuses to pay child support or any extra curricular activities to do with their children and/or comply with any of the children's mother requests for something as simple as signing an excursion form due to the initial setup many years ago of 50/50 joint custody and decision making despite the children living with the mother full time.

But I just wanted to know If marriage gives you some more rights to act as a father for the children than if you were not married at all and if adoption would be the best way to go if the step father were to have the same rights as a biological parent?

Thank you for your response so far.

 

[Tremaine]

I see.

Well, the simple answer is that marrying their mother doesn't give you any extra rights of parental responsibility by virtue of being a step-parent - you can't make medical decisions for the kids, change their names, consent to international travel, or change their school enrollments. You would need to adopt the kids to gain parental responsibility, and you would need biological dad's consent to adopt them.

For the record, who the kids live with has no bearing on parental responsibility, and in fact, it's pretty standard for both parents to have equal shared parental responsibility (or 'decision-making') even if they live full-time with one parent or the other.

Also, for clarity, child support is a legal matter separate to custody and parental responsibility. If dad is assessed to be paying child support, then mum should take this up with the child support agency so they can pursue it on her behalf.

Final note, dad doesn't have to comply with mum's requests, and mum doesn't have to comply with dad's requests. Not liking the other's non-compliance doesn't mean one of them should lose parental responsibility all together.

 

[Familylaw101]

Thanks for your answers,

Makes sense, fair or not doesn't matter its the law.

 

[Tremaine]

Well, it’s fair for the parents (and the kids). I can’t imagine many mums, dads or children would celebrate any law that allowed one parent to change the kids’ parentage just by marrying someone else after a break-up.

 

[Familylaw101]

Well, it’s fair for the parents (and the kids). I can’t imagine many mums, dads or children would celebrate any law that allowed one parent to change the kids’ parentage just by marrying someone else after a break-up.

I guess there's always more to the story depending on your circumstances such as the case in this one with the children's step father being in their lives since they were 6 (now in their teens) and their biological father has been found guilty of molesting his own children...but some advocates still believe people that molest children are still entitled to 50/50 shared parental responsibility and that they still deserve a relationship with their children despite their children's protests and the protests of psychologists and the general community overall.

So in everything I have seen to date I don't believe the law is always fair and just and sometimes a little logic and common sense would probably prevail many laws we have in place.

Like many others on here there's probably always more to the story than one would assume.

Thanks for your help either way.

 

[sammy01]

My partner does dr appointments with my kids, fills out school forms, disciplines them, hugs them, loves them, does parent teacher nights.
Basically all my partner can't do is get the kids a passport, although, my partner has taken one of my kids out of the country without me being there. In a medical emergency, IF i was not present my partner could communicate with DR's about how to treat the kids.
So really step parents have lots of rights. AND if heaven forbid me and partner were to split, my partner would have grounds under family law to continue having a meaningful relationship with the kids.
If I died, my partner could and hopefully would seek the opportunity to be the primary carer of the kids while still facilitating access with the ex... What would the courts do?Maybe grant my partner primary care status, maybe not... don't know, don't care - I'd be dead so not something I can actually do anything about.