Same Sex Adoption

Creating a family takes diverse paths, and not every lesbian or couple chooses biological parenthood. Adoption stands out as an equally rewarding and fulfilling option, offering unique experiences and joys. If you’ve been touched by friends’ adoption stories, you understand the depth of these experiences.

While societal perceptions may suggest a difference in authenticity between biological and adoptive parenthood, insights from adoptive parents dispel such notions. Navigating the adoption process, however, requires understanding its nuances.

Adoption involves the transfer of all legal parental rights from one or two parents to new parents. Adoptive parents assume the same rights and responsibilities as biological parents, and adopted children enjoy the social and legal benefits accorded to biological children.

Choosing adoption opens the possibility of welcoming a child into your home at various ages, ranging from a newborn to a ten-year-old or older. Providing a secure and loving home through adoption is a transformative act, fostering profound relationships with children. Imagine the impact of changing a child’s life in such a meaningful way and meeting their most fundamental needs.

How to adopt

Adopting a child can be approached through various avenues, each with its unique considerations. Options include permanent foster care, international adoption, adopting a child with special needs, or intrafamily adoption (taking on a related child, like a niece or nephew). It’s crucial to align your preferences and abilities with the specific requirements of each adoption path.

When contemplating adoption, consider factors such as whether you are equipped to provide lifelong care for a child with developmental challenges or if you have the skills to support a child requiring multiple hospital operations. Additionally, assess your interest in embracing and integrating a culture that may differ significantly from your own.

Adoption laws for lesbian couples or individuals vary across Australian states and territories. The adoption process, unfortunately, tends to be both expensive and time-consuming. International adoption costs can range from $6,000 to $25,000, while adopting through the foster care system is generally under $1,000.

In Western Australia, prospective parents may face waiting periods of up to seven years. Age limits for prospective parents also exist and should be researched before committing to the adoption journey.

Commencing family planning at an older age carries implications, as certain adoption paths may not align with the desired timeline. While international adoption might present challenges for older parents, those open to adopting older children often experience shorter waiting periods, leading to the creation of many joyful families.

Single lesbians have the opportunity to adopt a child in several Australian jurisdictions, including New South Wales, Australian Capital Territory, Western Australia, Tasmania, Queensland, Victoria, South Australia, and Northern Territory (with certain exceptional circumstances, such as if the child is under the care of the Minister or the Minister deems it desirable).

Unlike the considerations in IVF, the partnership status is not a determining factor in the adoption process for single lesbians. However, it’s worth noting that, in general, single applicants may have lower priority compared to married applicants or those in a de facto relationship.

Adopting as a couple

Lesbian couples in New South Wales, who have been in a de facto relationship for two years or longer, are eligible to adopt a child. Similar adoption opportunities exist for lesbian couples in the Australian Capital Territory, Western Australia, and Tasmania. In Victoria, since September 1, 2016, lesbian couples are permitted to adopt, and in November 2016, both Queensland and South Australia amended their Adoption Acts to allow same-sex couples to adopt.

Adoption Challenges and Considerations for Lesbians

While lesbians face similar adoption requirements as heterosexual couples and individuals, there are notable challenges leading to a limited number of lesbian adoptions. In Australia, the adoption landscape is characterized by a low number of available children, with only 292 adoptions completed in the 2015 financial year, marking an 8% decline from the previous period.  The majority of adopted children come from overseas, and restrictive criteria imposed by most countries can impede lesbian couples in Australia from adopting.

Several factors contribute to the low rate of lesbian adoptions. Existing parents may influence the choice of adoptive parents, often preferring heterosexual couples. Additionally, many non-governmental adoption agencies, particularly in NSW, are affiliated with religious organizations, allowing for discrimination against lesbian couples under existing adoption legislation such as Catholic Care and Anglicare. However, agencies like Barnardos actively seek lesbian adoptive and foster parents.

In light of the limited adoption opportunities, most lesbian adoptions in Australia result from long-term foster care or stepparent adoption. However, not all foster care situations lead to adoption, as the courts place considerable weight on the biological mother’s legal parental rights. Even in cases where the child desires to sever ties with their biological mother, legal hurdles may prevent foster families from becoming legal parents.

A notable case in the Supreme Court of NSW in March 2017 demonstrated progress in the legal perspective toward lesbian parents. In this case, lesbian foster parents were granted adoption rights for a 4-year-old girl, challenging objections from the biological mother who wanted the child raised in the Catholic religion. The court prioritized the child’s best interests over religious ties, signaling a positive shift. Justice Sackar said that while the law required cultural and religious ties to be preserved “as far as possible“, those concerns should not outweigh the child’s best interests.

For those considering adoption, effective communication with social workers about long-term goals is crucial. The assessment process typically takes three to four months, with adoption finalization occurring approximately six to nine months after the child’s placement.

Once the adoption is finalized, parties involved—adopted children, adoptive parents, birth parents, and non-adopted siblings—can access information about the adoption, including original and adoptive birth certificates, birth records, and adoption orders from 2010 onwards. This transparency provides adopted children and their families with insights into their birth family heritage and facilitates understanding and connection from an early age.

Prospective adoptive parents must contemplate how open they wish to be with their child and whether they are comfortable connecting with birth relatives. Questions about sharing the child’s story, communicating it in simple terms, and being in contact with the birth mother and her family require careful consideration. The adoption journey involves thoughtful reflection on these aspects to ensure the well-being and understanding of all parties involved.

There are many support services for parents of adoptees to get help with these very complex issues. For more information on adoption:

https://aifs.gov.au/adoption-support-organisations

Parents Carers and Families

For more information on the requirements for overseas adoptions:

http://www.ag.gov.au

Navigating Second Parent Adoption for Single Lesbians

For single lesbians who have become mothers or find themselves in relationships with women who have children, second parent adoption can be a vital legal avenue. If you’ve independently had a child, this process allows your partner to secure legal rights to your child.

In the context of a relationship with a single mother, as your bond deepens, you might naturally take on a parental role in the child’s life. Whether it’s helping with daily routines like dressing for school, preparing lunches, or engaging in activities like reading and driving to lessons, your involvement may become integral. Despite this evolving parental role, you often lack legal parental rights, even if in a registered relationship with the child’s legal mother. The exception to this is engaging in the stepparent adoption process or obtaining parenting orders through the Family Court, provided there is consent from the legal parent(s).

Adoption Orders: Understanding the Process

When pursuing second parent adoption, the Federal Circuit and Family Court of Australia usually requires applicants to secure its consent before obtaining an adoption order.

With the exception of the ACT, laws in all states mandate that the court assess whether alternative orders, such as custody or guardianship, would equally serve the child’s welfare before issuing an adoption order. This careful consideration is crucial because adoption terminates the legal tie between the child and the other legal parent, replacing it with legal recognition for the birth mother’s new partner. The relinquishment of parental rights by the birth mother or father (if applicable) is a pivotal aspect. Consequently, courts are guided to explore whether Family Court parenting orders conferring parental responsibility might be more appropriate than second parent adoption.

A Federal Circuit and Family Court Parenting Order can grant legal standing to a stepparent for decision-making concerning the child and recognize the parent without necessitating adoption. This scenario may arise when the other parent is deceased, and their family has no contact with the child, leaving only one surviving parent and their new partner (the stepparent).

If both legal parents agree on a Family Court parenting order, it can be obtained as a Consent Order, indicating it has the parties’ consent.

In states or territories where lesbian second parent adoption is not permitted, one can petition the Court for a parenting order as a person “concerned with the care, welfare, and development” of the child. This enables obtaining orders related to spending time with the child (if separated) and participating in decisions concerning the child.

While all Australian states and territories recognize adoptions granted in other jurisdictions, it’s crucial to carefully assess options and consult a lawyer before embarking on the second parent adoption process. It’s a lifelong commitment with potential legal and financial complexities. The process may span years and incur legal fees exceeding $30,000, with the necessity for legal representation to file an application with the Supreme Court.

Upon successful adoption, a new birth certificate will be issued, reflecting the second parent as the additional “mother” or “parent.” Importantly, an adoption is irrevocable, providing permanence. In contrast, a Family Court order may not always alter the child’s birth registration, and modifications can be made later based on individual case circumstances.

Barker Evans is also the exclusive legal partner for Rainbow Families, assisting the LGBTQI+ community.

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Barker Evans are the best family lawyers in Sydney with leading LGBTQI+ family law experience and a specialist background in same sex parenting and property cases.