Every time the census is taken in Ireland, the amount of people with children who are cohabiting, but not married, rises. The average number of children per cohabiting couple increased from 0.7 in 2011 to 0.9 children in 2016.
In some cases these may be the biological children of the cohabiting couple, in some cases the couple may have adopted (thanks to new legislation allowing for unmarried couples to adopt), and in some, increasingly common cases, the child or children may be the biological offspring of one half of the couple, but not the other.
If are a parent to your partner's children in every aspect but law, you may be considering formalising your situation by adopting your partner's children, thus sharing guardianship rights with them.
There are two key pieces of legislation to bear in mind when exploring the idea of adopting your partner’s child. The first is the Adoption (Amendment) Act 2017.
Up until 2017, if you wanted to adopt your partner’s child, you had to be married to each other in order to have the same rights and responsibilities as the child’s biological parent. It was possible for an unmarried person to apply to adopt a child, but their partner had no legal rights in relation to the child if they were not married.
In order for a couple to adopt a child and parent with equal rights, they had to get married and adopt the child as a couple – even in cases where one of the people was already the biological parent and legal guardian of that child.
Under the Adoption (Amendment) Act 2017, a step-parent can now apply to adopt their partner’s child without the partner having to also apply to adopt his or her own child. In addition, the Act broadens the meaning of “step-parent” to include the civil partner of a parent of the child; a cohabitant in a cohabiting couple where the other cohabitant is a parent of the child; and the spouse of a parent of the child.
In order to avail of this legislation, the child must have lived together with their parent and prospective step-parent for a minimum of two years, and the couple must have been cohabiting for a minimum of three years.
The other thing to consider is the legal rights of the child’s other birth parent. If the child’s other biological parent has joint guardianship rights, then his or her consent is required before an adoption order can be made.
In January 2016, the Minister for Justice signed a Statutory Instrument commencing certain provisions of The Children and Family Relationships Act 2015. Under the measures, unmarried fathers, for the first time, automatically become guardians of their children if they meet a cohabitation requirement.
An unmarried father who lived with the child’s mother for a minimum of 12 months, including three months following the child’s birth, automatically becomes the child’s guardian. However, the change is not retrospective, so any child born before the 18th of January 2016 is not covered by this legislation. In those cases, the old rules still apply, whereby the child’s mother is the sole guardian of the child unless joint rights are signed over to the father voluntarily by the mother, through a solicitor, or by an order of the court.
Regardless of the legal circumstances of the child’s other natural birth parent, the Adoption Authority of Ireland is obliged to make every effort to seek a birth father’s views on the adoption application to make an adoption order.
If a child is adopted by his/her birth mother and her spouse, then all legal rights and responsibilities in respect of the child are vested in them. The birth father no longer has any rights in respect of his child.
If any of these issues affect you and you would like to find out more, contact us today in confidence.