Q I want to make sure that if something happens to me, my son will be cared for by my current partner, who is his step-father. I do not want him to live with my ex-husband. Would the easiest option be for my partner to adopt my son?

A This is a very complex area and there are no simple answers. There is no automatic right to adoption and it will not be appropriate in every case; in fact it would be seen as a last resort.

Alternatives to adoption One option is to include a clause in your Will appointing your partner as a guardian for your son, in the event of your death. It would be advisable for you to consult a Private Client solicitor, to explore the options available. An appointment in your Will is not binding on the Court but may be persuasive as it will clearly set out your wishes. If your partner lives with you and your son and you were to pass away, naturally you may expect that your son would continue to live with your partner. However, if your son’s other parent was to challenge this, your partner would again need to make an application to the Court. Alternatively, if you and your partner are married and your son resides with you, your partner can acquire parental responsibility by entering into a formal agreement with all of those with parental responsibility for your son. Parental Responsibility is defined as the rights, responsibilities, duties and powers of a parent and allows a person to make important decisions about a child including medical treatment, changing a name or where they live.

As his biological mother, you automatically have parental responsibility for your son. If you and your ex-husband were married either at the time of your son’s birth or subsequently, he will also have parental responsibility for him.

Entering into a formal agreement is one of the more amicable methods of ensuring that your partner would be able to make decisions regarding your son in conjunction with his father, in the event of your death. If your son’s other parent does not agree to enter into a formal agreement, your partner can make an application to the Court for either a parental responsibility order or a child arrangements order to determine who your child lives with.

Step parent Adoption

  • If your partner was to make an application to adopt your son, either individually or jointly with you, the following criteria would need to be met:
  • He is at least 21 years of age
  • He is either married to you or living with you in an enduring family relationship (some council’s recommend at least two years)
  • He is a resident of the British Isles or has been habitually resident for at least a year
  • He has been continually living with your son for at least six months s He has informed the local authority of his intention to adopt your son, in writing, at least three months before making his application.
  • Your son is under 18.

When an application is made, the Court would order a social worker from your local council to provide a report, assessing you and your partner. This would involve interviews with both birth parents to ascertain their wishes, along with anyone else with parental responsibility, and the child.

If the Court grants an adoption order, your partner would obtain parental responsibility for your child. One result of such an order is that parental responsibility would be removed from your child’s other parent and anyone else with parental responsibility. It would also cancel out any other order, such as a child arrangements order addressing when the child sees his other parent. It is therefore regarded as an extreme option, which the Court would have to consider very carefully.