Information for adoptive parents
This information is for parents who want to take parental leave from their work because they are assuming care of a child under six years of age who they are formally adopting.
Adoptive parents are eligible for parental leave from their employment, and to receive parental leave payments, if they meet the eligibility requirements of the Parental Leave and Employment Protection Act 1987 (PLEP Act) as an employee and the adoption must be lawful in New Zealand. This means the intended adoption order must be made under the Adoption Act 1955 (Adoption Act) or have the same effect as an adoption order made under that Act.
For adoptive parents, as opposed to birth parents, there are differences when it comes to eligibility for parental leave and the amount of notice that must be provided to the employer of the intention to take parental leave.
Adoptive parents eligibility for parental leave as employees
Like birth parents, adoptive parents may be eligible for three types of leave as employees:
What is it?
- Leave of up to 14 weeks
- Begins no later than the date the employee first assumes care of the child
Who is eligible?
Female employees who:
- assume with a view to adoption the care of a child under six, and
- at the date which they, with a view to adoption, first assume care of the child, will have been in the employment of the same employer for at least an average of 10 hours a week in the previous 6 or 12 months (known as the “hours” test)
What is it?
- Leave of up to two weeks
Who is eligible?
- Partners (who are assuming care of the child jointly) of the female employee who at the date they, with a view to adoption first assume care of the child will have been employed in their respective employment for at least an average of 10 hours a week in the preceding 12 months.
- If, at the date the partner, with a view to adoption first assumes care of the child will have been employed in their respective employment for at least an average of 10 hours a week but only in the preceding 6 months, this entitles them to up to one week of partners/paternity leave. This may however be extended in some circumstances detailed.
What is it?
- Leave of up to 52 weeks (inclusive of maternity leave)
- Can be shared between the female employee and her partner if both are eligible
Who is eligible?
- female employees and their partners (who are assuming care of a child jointly), and
- at the date they, with a view to adoption first assume care of the child will have been employed in their respective employments for at least an average of 10 hours a week in the preceding 12 months.
What is a ”view to adoption”?
Each of the eligibility criteria above has two parts. In order to be eligible for parental leave, adoptive parents must not only have worked the number of hours required to meet the ‘hours tests’, they must also have a “view to adoption”.
A “view to adoption” means taking formal steps to legally adopt under the Adoption Act. This means certain documentation which places the child lawfully in the home of the employee must be in place at the date the employee will first assume care of the child. The required documentation must be one of the following (depending on how the child will be placed in the home):
- a Child Youth & Family (CYF) Social Worker issues a letter placing the child in the home with a view to adoption;
- the Family Court issues an interim order placing the child in the home with a view to adoption.
where a child is otherwise lawfully in the employee’s home and the employee completes a statutory declaration stating that the child is lawfully in their home and detailing what steps are being, or have been, taken by the employee to formally adopt the child. Situations where this may occur are when:
- the child is in the home because of custodial arrangements under the Children, Young Persons and Families Act 1989; or
- the child is in the home because of guardianship arrangements under the Care of Children Act 2003; or
- the child is in the home of a parent and step-parent; or
- the child is in the home of a relative. Note that “relative” is narrowly defined in the Adoption Act, and may only be a grandparent, brother, sister, uncle or aunt of the child, whether by full-blood, half-blood or by affinity (marriage).
The applicable documentation listed above must also be provided to the employee’s employer when the employee notifies them of their intention to take parental leave. This is detailed at Notifying employer of intention to take parental leave.
Further information about adoption
Employees who are intending to adopt and wish to take parental leave are advised to contact Child, Youth & Family Service for further information about adoption and the adoption process. The effect of an adoption as provided by the Adoption Act is that the child effectively ceases to be the child of his or her natural parents and becomes, for all intents and purposes, the lawful and natural child of the adoptive parents.
It is important to note that informal private arrangements, (including whāngai, atawhai and other cultural adoptions), guardianship and parenting orders, Home for Life and other foster care arrangements are not in themselves an adoption under the Adoption Act. To qualify for parental leave, the adoption must be a formal adoption under the Adoption Act.
It is also important to note that the PLEP Act does not anticipate a person assuming care of a child and then later deciding to adopt. The eligibility sections of the Act require that there must be a view to adoption (with all necessary documentation in place) when the employee first assumes care of the child.
To take parental leave from your employer, you must give them notice of your intention to take parental leave. Information on what to include in the letter is detailed at How do I apply for parental leave?
The notice required of an adoptive parent is shorter than that of a birth parent. This reflects that placements of children in adoptions are often at short notice. The notice provided must be accompanied by the relevant documentation within 14 days of receipt of the documentation.
The notice requirements are as follows:
|Circumstance||Notice must be given to the employer:||Notice must be accompanied by:|
The child has been approved for placement in the employee’s home by a CYF Social Worker.
Within 14 days after the employee receives notification that he, she, or the couple will have a child placed with them lawfully in their home within the next 3 months.
The letter from the CYF Social Worker stating that the child has been placed lawfully in the home of the employee with a view to adoption.
The Family Court has made an interim order that will place the child in the employee’s home.
Within 14 days after the interim order is made placing the child lawfully in the employee’s home.
A certified copy of the interim order.
The child is otherwise lawfully in the employee’s home pursuant to the Adoption Act 1955
Within 14 days after the date the employee makes a statutory declaration that he or she has assumed care of a child with a view to adopting that child.
A statutory declaration that the employee has assumed care of the child with a view to adoption and detailing the steps being taken to formally adopt the child.
As the timeframes are narrow, it is expected that as part of your good faith obligations as an employee, you keep your employer aware of your intentions to adopt and take parental leave, well in advance of receiving the notification placing the child in your home.
It is important to be aware that the notice of intention to take parental leave can only be given once the employee has the necessary documentation in place. Without this, the notice provisions cannot be complied with and additionally the view to adoption element of the eligibility criteria cannot be satisfied either.
In the case of an employment agreement providing comprehensive coverage of parental leave issues waiving the requirement to provide the employer with evidence of the intended adoption, the documentation being in place at the date of first assumption is critical evidence for determining eligibility for receipt of parental leave payments. This is detailed at information on taxpayer funded paid parental leave.
Examples of eligibility for employees and providing employer with notice of intention to take parental leave when adopting
- Jo and Phil have been approved by Child Youth & Family (CYF) Service as eligible to jointly receive a child for adoption. They have been placed into a pool and have to wait until a child is available for placement.
After a few months they receive a letter from their CYF Social Worker that in one months’ time, a child aged 1 will be available and placed with them. Jo wants to take maternity leave from her employment to care for and bond with her child. Phil also wants to take parental leave from his employment later in the year.
At the date that Jo and Phil will assume care of their child with a view to adoption, Jo will have been employed for seven months, and her average hours over this time are 20 per week. This, plus being in receipt of the formal placement letter, entitles her to take 14 weeks maternity leave. Jo must, within 14 days of receipt of the placement letter, notify her employer of her intention to take maternity leave, provide the dates that she wishes to take (her maternity leave must commence no later than the date she first assumes care of the child), and inform of the dates that Phil wishes to take, an assurance that he is her partner, is assuming care of the child jointly with her, and that the total amount of parental leave they are taking is no greater than 52 weeks. The letter must be accompanied by a copy of the CYF Social Worker’s placement letter.
Phil has been employed with his employer for 10 years, for 40 hours a week. He meets the hours test and has the documentation showing the child is lawfully in his home with a view to a adoption, and he is adopting the child jointly, which makes him eligible for up to 2 weeks partner’s/paternity leave and up to 52 weeks extended leave (less any maternity leave taken by Jo. He must also provide his employer with notice within 14 days of receipt of the letter, providing the same information as Jo has.
Because both Jo and Phil meet the eligibility criteria for parental leave (i.e. meeting the hours test plus having a view to adoption), and the notice requirements have been complied with, their respective employers must grant them parental leave.
- Glenys and John have been in contact with a mother who wishes to give up her newborn child for adoption, and they wish to adopt her child. They instruct their lawyer to apply for an adoption order in the Family Court.
Several months later, the Family Court issues an interim order which will place the child lawfully in their home in two days’ time. The next day, Glenys notifies her employer in writing of her intention to take maternity leave, accompanied by a certified copy of the interim order. As she meets the hours test and has a view to adoption at the date she will assume care of her child, she is eligible for maternity leave and her employer grants her this. As she assumes care of her child the following day, her maternity leave begins at that point.
- Aroha and Nathan recently assumed the care of Nathan’s sister’s baby (their niece). They both wish to jointly adopt the baby girl, and have Nathan’s sister’s consent for this. They contact CYF Service to ascertain what steps they need to take to do this. They fill in an application to adopt form.
Aroha wishes to take maternity leave to look after her baby girl. As she has been employed with her employer full-time for several years she meets the hours test. As the child is her niece (and she is the child’s aunt by affinity), the child is lawfully in her home. She signs a statutory declaration, witnessed by a Justice of the Peace (JP), stating that she has assumed care of a child, which is lawfully in her home and whom she intends to adopt, and details at what stage she is at with the adoption process.
Aroha notifies her employer within 14 days of making this statutory declaration that she wishes to take parental leave. As she meets the “hours” test and the child is lawfully in her home, with a view to adoption, she is eligible for parental leave, and her employer grants her this.
- Miriam assumes the care of her second cousin’s baby in a whāngai arrangement. At this stage she is not intending to adopt the child, but might formalise things later. She believes that she is entitled to take parental leave as she has been employed with her employer full time for several years, and she wishes to take parental leave to look after the baby, so she makes a statutory declaration stating that she has assumed care of the child and intends one day to adopt the child. She gives her employer notice of her intention to take parental leave and attaches the statutory declaration.
However, a whāngai arrangement is not in itself an adoption; and, as the child is not lawfully in her home with a view to adoption, nor has she taken any formal steps to initiate adoption proceedings, Miriam does not qualify for parental leave and her employer declines her request. This also means that she will be ineligible for parental leave payments.
Parental leave payments for employees who are adoptive parents
Employees who are adopting become eligible for parental leave payments in much the same way as birth parents are. They must:
- Give written notice to their employer of intention to take parental leave; and
- Actually take parental leave away from employment; and
- Be an “eligible” employee.
To be an “eligible” employee, the employee must qualify for parental leave under the PLEP Act as described in the above/previous section (and not, for example, through any contractual entitlement to parental leave which may provide for enhanced qualification criteria, nor any contractual leave in the nature of parental leave granted by an employer in the event that their employee is not eligible for parental leave under the PLEP Act).
Applying for parental leave payments
Applications for payments for adoptive parents are made in the same manner as for birth parents, i.e. by filling in an IR880 (application for parental leave payments for employee) and sending to Inland Revenue. The application should also be accompanied by the documentation showing that the adoption is taking place pursuant to the Adoption Act and the child is lawfully in the home of the employee.
However, the PLEP Act also allows for parents who are adopting jointly to nominate which one of them is to be primarily entitled to the parental leave payment. (Note that the Adoption Act places some restrictions on who may adopt a child jointly; this will mean that partner’s/paternity leave and extended leave will not be available for the partner of an adoptive parent if they are not adopting jointly. Further information about adopting jointly can be obtained from the Child, Youth & Family Service.)
Examples of parental leave payments for employees
- Jo and Phil have had a child placed with them under the Adoption Act by a CYF Social Worker. Jo qualifies for maternity leave from her employment and is taking parental leave from her employment. As they are adopting jointly, Phil also qualifies and is also taking parental leave from his employment at the time they assume care of their child and later in the year.
Jo and Phil nominate Phil to be the primary caregiver for the purposes of parental leave payments. Phil can apply for payments to Inland Revenue using an IR880 application form, accompanied by a copy of the CYF Social Worker’s placement letter. Phil’s payments will commence when he commences his extended leave.
- Hannah has assumed the care of a child in a whangai arrangement with her second cousin. She is not adopting the child, as her second cousin still wishes to have contact and some decision making rights with respect of the child.
Hannah applies for parental leave from her employer. Despite the fact that she is not adopting the child, her employer grants her leave away from work in the nature of parental leave.
Hannah then applies to Inland Revenue for parental leave payments. However, Inland Revenue decline her application. This is because to receive payments, Hannah must be an “eligible” employee; i.e. she must meet the criteria for parental leave under the Parental Leave & Employment Protection (PLEP) Act, being that she must meet the hours test and must have the child lawfully in her home with a view to adoption. The private arrangement that Hannah has entered into is not in itself an adoption under the Adoption Act, and the leave that her employer has granted is not enough to satisfy this. Therefore, Hannah is not eligible for parental leave payments. She may as an alternative be eligible for the Parental Tax Credit . More information about this can be found on Inland Revenue’s website .