Legal Rights of Stepparents

The following was a question asked by a stepfather. At the end of his question is a response provided by the South Australia Legal Commission.


i would like to know if i have any legal rights on my two eldest step-daughters aged 12 and 15. me and the wife were discussing in the event of her death, what would happen to them, would the girls have to return to there biological father in england IF he wanted them. this would be devastating all round, they have two younger sisters, aged 4 and 6 from their mum and me, and the effects of not only losing mum but me and them too, plus friends, schools, lifestyle ect. i have been 'father' to these girls for ten years now and with the eldest this last couple of years has being very stressful, but i would be still happy to keep the family together regardless. it is a big worry and i know we shouldn't dwell on the what if's, but i would like to hear if any other step parents feel the same and if any have gone through this and if so what was the out come was ect ect. thanks steve


A stepparent does not have the same legal standing as a natural parent with regard to their spouse's children. Upon the death of a parent, parental responsibility passes to the surviving natural parent, not automatically to the surviving stepparent.

However, there are situations where this general rule is altered: namely, when the parent that has died had sole parenting responsibilities (eg. Because of a specific issues court order, or the other parents' name was not on the birth certificate, or the other parent has also died). In this situation, the parent with sole parenting responsibilities can set out in their will who they want to care for the children in the event of their death.

The other way for a step parent to be appointed as the person responsible for looking after the children is by applying to the Family Court for a "parenting order". This method can be used where the care of the children is in dispute, where there is no will providing for the care of the children, or where there is a will, but it is challenged. The Family Law Act 1975 specifically provides that in addition to parents and grandparents, "any other person concerned with the care, welfare or development of the child" may apply for a parenting order. A surviving natural parent would have to be notified that the application had been made, and would be given the opportunity to object to the order being made. The court considers the best interests of the child in all the circumstances of the case, and looks at factors such as the status quo, what the children are used to, their general wellbeing, and contact with the natural parent.

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