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.
For a self-employed adoptive parent to be eligible for parental leave and to receive parental leave payments, they must meet the parental leave eligibility requirements as a self-employed person, 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. The key difference for a self-employed person who is adopting is the eligibility criteria for parental leave.
Adoptive parents eligibility for parental leave and payments when self-employed
Like self-employed birth parents, self-employed adoptive parents may be eligible for up to 14 weeks parental leave and payments if they:
- 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 assumes care of the child, will have been in self-employed for at least an average of 10 hours a week in the previous 6 or 12 months (the “hours” test).
View to adoption
Each of the eligibility criteria above is a twofold test. The first is meeting the “hours” test at the date the self-employed person will first assume care of the child; the second is having a “view to adoption” of that child. Both elements must be satisfied to be entitled to parental leave and payments.
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 self-employed person must be in place at the date the self-employed person will first assume care of the child. This essentially gives effect to the view to adoption.
For a child to be lawfully in the home with a view to adoption, one of the following documents is required as part of the formal adoption process (depending on how the child has been placed)
- a Child, Youth and Family (CYF) Social Worker issues a letter placing the child in the home with a view to adoption; or
- the Family Court issues an interim order placing the child in the home 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 include 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).
Applying for parental leave payments
Applications for payment for adoptive self-employed parents is done in the same manner as for birth parents, i.e. by filling in an IR888 (application for parental leave payments for self-employed person) and sending to Inland Revenue. The abovementioned formal documentation which is applicable to the circumstances must also accompany the application for parental leave payments.
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.)
Further information about adoption
Self-employed persons who are intending to adopt and wish to take parental leave are advised to contact the 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 therefore 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. To qualify for parental leave and payments, 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 in these circumstances and then deciding to adopt at a later stage; the eligibility sections of the Act require that to be eligible there must be a view to adoption (with all necessary documentation in place) at the date the employee first assumes care of the child.
Examples of eligibility for self-employed persons
- Jenny and Ron 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. Jenny wants to take parental leave from her self-employment as a beauty therapist to care for and bond with her child.
At the date that Jenny and Ron will assume care of their child with a view to adoption, Jenny will have been self-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 parental leave and receive payments. She can apply for payments to Inland Revenue using an IR888, which must be accompanied by a copy of the CYF Social Worker’s placement letter.
- Angela and Hiki 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. 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 up to 14 weeks parental leave.
As she assumes care of her child the following day, her parental leave begins at that point. She can apply for payments to Inland Revenue using an IR888, which must be accompanied by a certified copy of the interim order issued by the Family Court, and must be received by Inland Revenue before she returns to her self employment.
- Hinemoa and Jason recently assumed the care of Hinemoa’s daughter’s baby (her grandson). They both wish to jointly adopt the baby boy, and have Hinemoa’s daughter 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.
Hinemoa wants to take parental leave away from her self-employment as a gardener to look after her baby girl. As she has been self-employed for several years and works 40 hours per week she meets the hours test. As the child is her granddaughter, 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.
As she meets the “hours” test and the child is lawfully in her home, with a view to adoption, Hinemoa is eligible for parental leave and payments. She can apply for payments to Inland Revenue using an IR888, which must be accompanied by a copy of the statutory declaration, and must be received by Inland Revenue before she returns to her self-employment.
- Janet has assumed the care of a child as a result of a private arrangement between herself and the child’s mother. Janet has not taken any formal steps to adopt the child.
Janet temporarily stops working in her self-employment to care for her child, and applies to Inland Revenue for parental leave payments. However, Inland Revenue decline her application. This is because to receive payments, Janet must be an “eligible” self-employed person; i.e. she must meet the criteria for parental leave under the 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 Janet has entered into is not in itself an adoption under the Adoption Act. Therefore, Janet 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.