“Step parents” and their partners’ children
The pandemic has given rise to concern for those people living as a family with children who are not their own natural children. What happens to the children if the natural parent (called here for ease the mother) is ill or even dies?
In many situations, the legal position of the non parent (called here the partner, as he may not technically be a step parent if not married to the mother) may understandably not have crossed anyone’s mind. Each family is in a different factual situation. The partner and the mother may have been together since the child’s birth, and the partner be regarded as a de facto father. The natural father may be very much part of the child’s life, absent, or somewhere in between.
The partner will not have "parental responsibility" for the child. Parental responsibility means all the rights, duties, powers, responsibilities and authority that a parent of a child has in relation to the child and his property by law. He will not have any rights with regard to the child in the event that the mother is incapacitated. He would not have parental responsibility even if he had been deceived into believing that he was the child’s natural parent.
The natural father will have parental responsibility broadly if he is or was married to the mother, is named on the birth certificate, has a parental responsibility agreement or an order which confers parental responsibility on him.
There are various steps which can be taken by the partner and the mother to secure the position. The partner can apply for an order that the child lives with him and the mother, which would need the natural father's consent (assuming that he has parental responsibility) or a contested hearing. This gives the partner parental responsibility.
If the partner and the mother marry, they can enter into a parental responsibility agreement but again the natural father would need to consent too if he has parental responsibility. Neither of these steps takes away the natural father's parental responsibility. Contrast the position if the partner and the mother marry and divorce, the partner may have financial responsibility for the child on the basis that the child is a child of the family.
Adoption is a much more drastic route as it involves extinguishing the natural father's parental responsibility.
The mother can appoint the partner as guardian on her death, but unless she has an order to say the child lives with her, the guardianship does not take effect until the natural father has died too.
A partner and mother may not want to rock the boat with the natural father, but it is worth thinking about steps which could be taken to formalise the position should the mother not be around to care for the children. If this does not happen, a partner can still apply to the court for the child to live with him, and can apply without needing the court’s permission if he is a step parent or has lived with the child for the previous three years.
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