There have been many queries about step-parent adoptions and there seems to be little information regarding what is involved in the process from a South African perspective. This article explains the process and requirements.
There is actually not a big difference in the process between step-parent adoption and regular adoption. One of the Categories of “Persons who may adopt a child” in the Children’s Act, is:
“ …a married person whose spouse is the parent of the child, or by a person whose permanent domestic life–partner is the parent of the child”
- Both biological parents have to sign consent for the adoption unless one of the parents is deceased in which case a death certificate must be submitted.
- If the child is 10 years old, or mature enough to understand the process, they must also sign consent at court.
- The adopting parent must go through a screening process
Before signing consent each person must have counselling from an Adoption Accredited Social Worker with regard to what consent entails and the implications thereof. An appointment will then be made at the Children’s Court that is in their area and they will sign the consent before the Presiding Officer. The Presiding Officer will check that they understand the implications of signing consent to the adoption of the child. There is then a 60-day period during which the person can withdraw their consent, before it becomes binding.
What about the birth parent’s rights?
In signing consent for the adoption by the step-parent, the biological parent must realise that the implication of this is that should the couple ever get divorced, the adoptive parent will have the same rights towards the child as if the child was born from their marriage, and would have the right to apply for custody in this situation.
One must bear in mind that step-parent adoption, like any other adoption, terminates the parental rights and responsibilities of the birth parent. This is not taken lightly and this is why there is quite an extensive process to follow. The exception is the parent who is the spouse/ partner of the one applying to adopt in a step-parent adoption situation.
Step-parent adoption, like any other adoption, terminates the parental rights and responsibilities of the birth parent
- It is possible to have a Post Adoption Agreement put in place where a contract regarding communication or visitation and provision of certain information may be made. This is a formal agreement that becomes a court order. The parties involved can for example agree that the biological parent giving up his/her parental rights is allowed to phone the child on his/her birthday or visit the child under supervision once a year. The content of this agreement will depend on the relationship between the parent and child prior to the adoption and has to be in the best interest of the child.
- Even if a parent has not been involved in the child’s life, efforts still need to be made to acquire his or her consent in the prescribed manner according the Children’s Act. There is a common misconception that if the biological parent has not contributed towards financial maintenance of the child, his/her consent is not required. This is not true. Even if the divorce settlement has awarded sole custody to one biological parent, the consent of the other biological parent is still required in adoption matters. This is also true if guardianship has been obtained by the high court. Tracing of the “other” parent in a step-parent situation is sometimes difficult but in the long run, the more information that is provided to the social worker assisting with the adoption, the better. If due process is not followed, the adoption can be challenged in court.
How ‘adoptable’ is your child?
Situations vary, so the best option is to discuss your circumstances openly with the social worker assisting with the adoption so that she can find the best way to proceed according to the Children’s Act provisions. This process establishes the “adoptability of the child” which must be proven before an adoption can be granted.
A screening, marriage and individual assessment
The second part of the adoption process is to establish whether the person adopting is “fit and proper” to do so. The step-parent would need to be screened, which entails various interviews and assessments being done and includes a home visit, a marriage assessment and an individual assessment. They would also need to provide a medical report, personal reference letters and proof of income.
- The step-parent must submit a Form 30 to the Department of Social Development and would then be provided with a letter confirming that their name is not on the Sexual Offences Register. A police clearance is also necessary. The applicant will need to provide these original documents along with certified copies of the parties’ ID documents and marriage certificate.
- The child must have a medical report and the social worker would need to assess the child and the relationship between the child and the step-parent. The process involved to declare the child adoptable depends largely on the age and maturity of the child, which determines whether the child would have to sign consent to their adoption at court. The original unabridged birth certificate must be submitted to court at finalisation.
- Once this process has been followed, the reports are submitted to the Department of Social Development, and once they have provided an approval letter, the reports are submitted to court. The step-parent would apply to adopt the child by signing at court. The application may be done earlier in the process at some courts.
Situations vary, so the best option is to discuss your circumstances openly with the social worker assisting with the adoption
The role of a social worker in step-parent adoption
The choice of social worker to assist in the adoption is important because the social worker will take you through the process and ensure that the legal process has been followed correctly. Many welfare organisations prefer to refer step-parent adoptions to private social workers as the process is time-consuming and their primary focus is assisting children in need of care. Private social workers are a good option but there is currently no binding regulation of fees in private practice, so the best would be to ask for a breakdown of their rates at the beginning so that you can make an informed choice. The Children’s Act specifies that only organisations or social workers accredited to do adoption work may provide adoption services, so it is also vital to ensure that the person or organisation you are using has been accredited by the Department of Social Development to do adoption work.
Once the adoption is finalised, the child may take the step-parent’s surname and the step-parent will have full rights and responsibilities towards the child as if the child were born to him or her.
- The Children’s Act, No. 38 of 2005
- Practice Guidelines on National Adoption, Department of Social Development
With thanks for input from Marlise Viljoen (Adopticare) and Katinka Pieterse (Supervisor: Adopticare; Director: Abba Adoptions)