What are the legal implications of a step-parent adopting a child in South Africa? Is it possible and what are the rights of the biological parents?
It often happens that a couple marries and there are step-children involved. A spouse would therefore have a child from a previous relationship. The previous relationship could either have been a marriage or just a romantic experience. Sometimes, the step-parent would want to adopt the child, affording him or her legal rights and responsibilities over the child. This is the case, even if the other parent is still alive and in the picture.
It may happen that a parent is not much involved in a child’s life and would not mind that the other parent who cares for the child have his or her spouse adopt the child. By doing so, the child would have the step-parent’s surname. The responsibility towards the child would now also fall on the step-parent. Whatever the reason, this article deals with the legal aspects.
As you would see further below, an adoption order has the following effect:
(a) confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent;
(b) confers the surname of the adoptive parent on the adopted child, except when otherwise provided in the order;
(c) does not permit any marriage or sexual intercourse between the child and any other person which would have been prohibited had the child not been adopted; and
(d) does not affect any rights to property the child acquired before the adoption.
(3) An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child.
The law dealing with adoptions is the Children’s Act 38 of 2005 (the Act). Chapter 15 of the Act which deals with it is quite extensive. It starts at section 228 and ends at section 253. We will first deal with the issue as which child may be adopted. For a full view of the Act and the relevant sections, click here.
Child who may be adopted
230.(1) Any child may be adopted if-
(a) the adoption is in the best interests of the child;
(b) the child is adoptable; and
(c) the provisions of this Chapter are complied with.
(2) An adoption social worker must make an assessment to determine whether a child
(3) A child is adoptable if –
(a) the child is an orphan and has no guardian or caregiver who is willing to adopt
the child;
(b) the whereabouts of the child’s parent or guardian cannot be established;
(c) the child has been abandoned;
(d) the child’s parent or guardian has abused or deliberately neglected the child, or
has allowed the child to be abused or deliberately neglected; or
(e) the child is in need of a permanent alternative placement.
Next, we deal with who may adopt a child.
Persons who may adopt child
231.(1) A child may be adopted-
(a) jointly by-
(i) a husband and wife;
(ii) partners in a permanent domestic life-partnership; or
(iii) other persons sharing a common household and forming a permanent family unit;
(b) by a widower, widow, divorced or unmarried person;
(c) by 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;
(4 by the biological father of a child born out of wedlock; or
(e) by the foster parent of the child.
Lastly, should all go well, the court would make an adoption order. The next section of the Act deals with the effect of the adoption order.
Effect of adoption order
242.(1) Except when provided otherwise in the order or in a post-adoption agreement confirmed by the court an adoption order terminates –
(a) all parental responsibilities and rights any person, including a parent, step-parent or partner in a domestic life partnership, had in respect of the child immediately before the adoption;
(b) all claims to contact with the child by any family member of a person referred to in paragraph (a);
(c) all rights and responsibilities the child had in respect of a person referred to in paragraph (a) or (b) immediately before the adoption; and
(d) any previous order made in respect of the placement of the child.
(2) An adoption order –
(a) confers full parental responsibilities and rights in respect of the adopted child upon the adoptive parent;
(b) confers the surname of the adoptive parent on the adopted child, except when otherwise provided in the order;
(c) does not permit any marriage or sexual intercourse between the child and any other person which would have been prohibited had the child not been adopted; and
(d) does not affect any rights to property the child acquired before the adoption.
(3) An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child.
What are the rights of step-parents and his or her spouse after the step-parent adopted the child?
Once a child has been adopted by a step-parent, the court can order that both the step-parent and spouse (other biological parent) are the holders of parental responsibilities and rights. This issue was dealt with in the case of Centre for Child Law v Minister of Social Development (21122/13) [2013] ZAGPPHC 305; 2014 (1) SA 468 (GNP) (30 October 2013).
The court stated the following:
[14] The advice allegedly given by officials of the Children’s Court to prospective applicants for adoption that, in terms of s. 242 of the Act, the granting of an application for adoption by a step-parent will automatically terminate all rights and responsibilities of the parent in respect of the child, ignores the exception provided for in the preamble of s. 242. In terms thereof, an adoption order terminates those rights “except when provided otherwise in the order…………… The Children’s Court therefore has a discretion to order that the rights and responsibilities of a child’s parent or guardian will not terminate upon the grant of an adoption order in favour of the step-parent. It will, save in exceptional circumstances, clearly be in the best interests of the child that such an order be made. The Children’s Court is obliged to function in a manner which in each case promotes the best interests of the child and should, except where there are sound reasons not to do so, make an order that the granting of an adoption order in favour of a step-parent will not terminate the responsibilities and rights of the child’s parent or other guardian.
In this case, the court made the following order:
[17] In the result, I grant the following order:
1.It is declared that section 230(3) of the Children’s Act, 38 of 2005, does not preclude a child from being adoptable in instances where the child has a guardian and the person seeking to adopt the child is the spouse or permanent domestic life-partner of that guardian.
2.It is declared that section 242 of the Children’s Act, 38 of 2005, does not automatically terminate all the parental responsibilities and rights of the guardian of a child when an adoption order is granted in favour of the spouse or permanent domestic life-partner of that guardian, having regard to the discretion which section 242 affords the court to order otherwise.
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What are the rights of the step-parent and the biological parent’s post-adoption?
Once the step-parent adopts the child, he or she has full parental responsibilities and rights as outlined above., The court can also order that you retain your parental responsibilities and rights over your child. At the same time, unless there is a post-adoption agreement stating otherwise, the other parent loses all his or her rights over the child.
If my son’s father isn’t on his birthday certificate and my current partner wants to adopt him because he has been providing for him since birth. His biological father doesn’t attempt at all to do anything. He basically lives his life like his son doesnt excist. The last time we spoke was when I was 5 Months pregnant. Would I still need his consent even if he isn’t on my son’s birthday certificate to give rights to my current partner. Which my son thinks is his biological dad.
Good day.
I have married my wife who has a child of 6 years from her previous unmarried relationship.her father has had no contact with her biological father on 3 years.
How do we go about for me to adopt her legally as my own (step)daughter?
Good day
We advise you approach the Children’s Court where the child lives.
Hello contact ([email protected]) if you are interested in child adoption , My husband and I adopted from here privately . Thanks
Christina
I have a son from a previous relationship I married my now husband when my son was 4. We have since had 2 more children and live quite happily as a family unit. My sons biological father passed away 3 years ago (my son in 9). I would like my husband to be the legal guardian of my son. Does he have to formally adopt or is there another application he can do to get guardianship?
My husband wants to adopt my daughter. She is allowed to see her biological father only every second Saturday or Sunday for 3 hours under my supervision. This is a court order given in high court.
Can my husband adopt my daughter?
My husband wants to adopt my daughter from previous marriage.
He provides all of her needs since we got married. Her biological father used to pay maintenance for her then stopped paying in 2020 before lockdown started.
Then after that I received money from him once a year for one year only then stopped.
He never visited her phoned her whenever he felt like it.
She wants nothing to do with him shes turning 9 now. She says my husband her step dad is her FATHER and keeps on asking him to change her surname. Her biological father gives her nothing not even working not seeing her theres no effort coming from his side.
He doesnt want my husband toe adopt her and have his surname.. What can I do its not fair towards my child
Hi, I have not had my son’s dad on birth certificate since he was born which will be 11 years in few months. In 2019 we sat him down and explained to him that we are moving to Australia as my Fiance has a job opportunity we can’t refuse and he agreed that it is a better future for our son and his family even thanked us and said we must grab it with both hands. He then approached me to ask me to put him on the birth certificate( which I don’t believe I need to be forced or to put his name on as we weren’t married and our relationship ended while I was 3 months pregnant after he was abusive towards me mentally, verbally and physically) I eventually asked him when will it suit him to go to home affairs and at that stage he replied he can’t get off work. ( For me if this was so important to him he would of made a plan!) Now that everything has been lodged and in place for our visas etc with the Australian agent and embassy he is now requesting again that I need to put his name on birth certificate ( bare in mind can take another 6 weeks to obtain and I would need to do a new passport which will also take just as long to obtain after receiving new unabridged birth certificate) . He is not understanding that if changes are made a refusal and no refund can happen on our application and R200k that has been made thus far is gone.. He can not understand that he is not on birth certificate and that I don’t need his written approval for visas etc. In all he is now refusing to pay maintenance due to this. He is threatening me with High Court and its caused alot of issues between my fiance and I. What do I do and surely I don’t need to put his name on birth certificate? Why is it that fathers must still have access to their child if this is a constant behaviour when things dont go there way? Our agreement at Childrens Court was he our son be on his medical aid which he pays alone, school fees half paid by him (maintenance was at round table with attorneys but not made a order of court) . Every month for nearly 11 years Maintenance has always been issue and always excuses on why payments can’t be made in full or on time. He has not had a medical aid since 2020 always some story. School fees arrears from a few different schools are sitting on in total of +- R300k ( this is not even the outstanding years of maintenance owing for 11 years) which he still owes( A private school 2019-20220 he said he would be accountable for from the beginning to pay as I could not afford those fees which arrears were R150k alone and my maintenance from 2019 I sacrificed for the year to pay my share which he never did so R30000 for the year of maintenance towards the fees for my share wasn’t even paid) and I have been harrased by attorneys for payments and the new school now he is also in arrears since last year! So tell me why should this man be on the birth certificate? Why is it that a father believes he has rights when he can’t even be a responsible one and has emotionally damaged our child! Eg. A phone was bought for him and was told in front of myself and our child that if his phone is taken away from him for any reason he must call the police on me as its theft! Tells our child he is going to get full custody and I’m going to lose both kids(I have another one with my fiance) . My child has been distant towards me ( parental alienation) and tells me he needs to pick a side which I’ve explained to him that there are no sides to pick as this is got Nothing to do with him and he shouldn’t be put in the middle by a parent as its not right. What are my rights?
My husband would like to adopt my daughters from a previously abusive relationship.
My ex has left and we haven’t seen him in years. He has no interest in the children and doesn’t call or check in on them. We don’t know where he lives either.
Can we proceed with the adoption without his (ex) consent?
It is possible. It would be best to approach an Adoption Social worker.
Hi.
My husband’s son from his previous marriage now turns 14 at the end of March 2022. He has been living with my husband since age 6. His biological mother left him with the father to pursue an abusive relationship. At the time she went back to the abuser for the third time. Her mother forced her to leave our son with his father as the mother’s boyfriend abused our son physically. He would lock him up, threaten him and the mother with a fire arm. Lock my son in a dog cage in the rain, etc. Therefore the biological mother’s mother forced her to leave my son with his father, my husband.
According to the settlement agreement, full custody is with the mother.
Since she left my son at age 6 she has visited him rarely. The last time she saw him was on approximately 16 December 2019 for approximately an hour. She insists on calling my son when she likes, sometimes once a week, sometimes once every three weeks. The conversations are never longer than 2 minutes. Sometimes the calls upsets him. He once cut my bathroom curtains to pieces after a call (during the last year). Another time he set his bedroom curtains on fire (he was about 9 years old then). When she contacts him or when her name comes up my son turns to himself. Becomes introverted. For a few days afterwards he is irritable and in a bad mood.
The biological mother does not present him with gifts on his birthday or Christmas. She does not contribute AT ALL financially. Not even a pair of underpants. She use to be a drug addict (i dont know now). I am on the scene now for 5 years and she has never contributed in any way unless her mother forced her to buy him a pair of sleeping jocks, etc. The last time that happened was approximately 4 years ago. Never again. What we do know is that until recently she abused alcohol with the boyfriend.
Approximately 2 weeks ago she went to a shelter for abused women. I previously attempted to get her in that particular shelter and they went out twice with police to fetch her and everytime she dodged the shelter people with simple excuses. The stopped trying to help her. That was approximately 3 years ago. Her sister now got her in at that shelter as far as I know this time around. She did not have a job for years and claims she has an autoimmune disease therefore she cannot work.
She keeps on insisting that she wants to go and live with her mother. We suspect she wants to take my son then and sue us for maintenance. As mentioned, she refuses to work. my son is in a private school as he is ADHD and despite a high iq, cannot function in a mainstream school. He is also on medication for his ADHD. I mainly pay for the private school and his medical needs such as the ADHD medication.
She neglected him at age 6. She attached her own mother for putting pressure on her to get a job years ago. Her mother has a protections order against her.
I have now enlisted the services of a social worker and I would very much like to adopt my son legally and get her out of our lives.
He has previously indicated he does not want contact with her. She ignored it and kept on calling him. During this week I once again informed her that she will no longer have contact with him. She ran to her mother and the mother wanted me to grant access for calls. I refused. It upsets my son. He has been calling me mommy for 5 years now. We are a solid, happy family. We have our normal ups and downs but we are tight. Him, his dad (my husband) and I. Our wedding anniversary is even on my son’s birthday. He went with us for the weekend when we became engaged, approximately 4 years ago. We will be married for 3 years now end of March 2022.
Should we go for me to adopt him legally or what should we do here? We want her out of our lives. The only thing I am scared of is that my son will not be able to express his wishagain for her not to contact him. He is a pleaser and unfortunately an emotional child as a result of his childhood thanks to the biological mother. His last therapy session was November 2021 and with the biological mother, social worker, current situation we will have to get him back in therapy. Again, she does not contribute a cent. Which I dont mind about, but we have to keep on paying because she upsets everybody.
She makes everyone miserable – the biological mother – and she has not played an active or any role AT ALL n his life now for years. With the last visit to him, mid December 2019 she stuck her tongue in his mouth. She apparently did this when he was little as well and when my mother in law asked her not to do that she responded with “he is my child and i will do what i want”. When she did it now the last time, my son was revolted by it. He basically vanished for the remainder of the visit and we did not see him again.
Please advise.
As a
Good day
We advise you approach the Children’s Court ASAP.
Hi.
My husband’s son from his previous marriage now turns 14 at the end of March 2022. He has been living with my husband since age 6. His biological mother left him with the father to pursue an abusive relationship. At the time she went back to the abuser for the third time. Her mother forced her to leave our son with his father as the mother’s boyfriend abused our son physically. He would lock him up, threaten him and the mother with a fire arm. Lock my son in a dog cage in the rain, etc. Therefore the biological mother’s mother forced her to leave my son with his father, my husband.
According to the settlement agreement, full custody is with the mother.
Since she left my son at age 6 she has visited him rarely. The last time she saw him was on approximately 16 December 2019 for approximately an hour. She insists on calling my son when she likes, sometimes once a week, sometimes once every three weeks. The conversations are never longer than 2 minutes. Sometimes the calls upsets him. He once cut my bathroom scissors to pieces after a call (during the last year). Another time he set his bedroom curtains on fire. When she contacts him or when her name comes up my son turns to himself. Becomes introverted. For a few days afterwards he is irritable and in a bad mood.
The biological mother does not present him with gifts on his birthday or Christmas. She does not contribute AT ALL financially. Not even a pair of underpants. She use to be a drug addict (i dont know now). I am on the scene now for 5 years and she has never contributed in any way unless her mother forced her to buy him a pair of sleeping jocks, etc. The last time that happened was approximately 4 years ago. Never again. What we do know is that until recently she abused alcohol with the boyfriend.
Approximately 2 weeks ago she went to a shelter for abused women. I previously attempted to get her in that particular shelter and they went out twice with police to fetch her and everytime she dodged the shelter people with simple excuses. The stopped trying to help her. That was approximately 3 years ago. Her sister now got her in at that shelter as far as I know this time around. She did not have a job for years and claims she has an autoimmune disease therefore she cannot work.
She keeps on insisting that she wants to go and live with her mother. We suspect she wants to take my son then and sue us for maintenance. As mentioned, she refuses to work. my son is in a private school as he is ADHD and despite a high iq, cannot function in a mainstream school. He is also on medication for his ADHD. I mainly pay for the private school and his medical needs such as the ADHD medication.
She neglected him at age 6. She attached her own mother for putting pressure on her to get a job years ago. Her mother has a protections order against her.
I have now enlisted the services of a social worker and I would very much like to adopt my son legally and get her out of our lives.
He has previously indicated he does not want contact with her. She ignored it and kept on calling him. During this week I once again informed her that she will no longer have contact with him. She ran to her mother and the mother wanted me to grant access for calls. I refused. It upsets my son. He has been calling me mommy for 5 years now. We are a solid, happy family.
Should we go for me to adopt him legally or what should we do here? We want her out of our lives. The only thing I am scared of is that my son will not be able to express his wish for her not to contact him. He is a pleaser and unfortunately an emotional child as a result of his childhood thanks to the biological mother. His last therapy session was November 2021 and with the biological mother, social worker, current situation we will have to get him back in therapy.
She makes everyone miserable – the biological mother – and she has not played an active or any role in his life now for years.
Please advise.
As a
Good day
We advise you approach the Children’s Court ASAP.
I got remarried and my new husband made the decision to adopt my children from a previous marriage. We went through a lawyer for the adoption. Only to find out now that my husband was only granted parental consent and it was not an adoption. Please will you assist with information on how we can finalise the adoption.
You may want to start and finalise the adoption.