Stepparents have limited legal rights when their stepchildren are involved. This is due to the fact that a divorce dissolves marriage, not parental rights. Therefore, each biological parent maintains their rights to their child. Because of this, stepparents do not have many legal rights without pursuing adoption. Alternatively, a court may see the relationship between the child and the stepparent as better in terms of the child’s best interests. In such instances, they may rule in favor of the stepparent over one of the biological parents.
Another unique situation occurs when a stepparent divorces the child’s biological parent. Although the stepparent and child may have formed a strong, healthy relationship over the course of the marriage, that marriage is now dissolved, and the stepparent has no legal status. They do not have any inherent custody or visitation rights as a biological parent would.
The “parental preference rule” states that biological parents are best suited to make decisions for the child, based on their needs and best interests. This is especially relevant in Troxel v Granville, a case which resulted in a Supreme Court ruling on the matter. If a stepparent divorces the child’s biological parent, and requests a visitation schedule but the biological parent objects, the stepparent will not be granted their request because of the parental preference rule.
However, cases in which the stepparent was married to the biological parent for an extended period of time and provided financially for the child may carry more weight and be given greater consideration. A stepparent may also be successful in their petition if the biological parent is deceased. The child’s other biological parent may also not be given preference if they have been determined to be unfit.
Because of the Supreme Court ruling, the decision is binding in state courts. However, there are laws regarding stepparent visitation rights that vary from state to state. Over twenty states authorize step parents petitioning for visitation rights in some capacity. Some states explicitly name stepparents in their laws as being able to petition for rights, while others designate stepparents requesting legal rights as interested third parties.
Still other states have no statutes allowing for stepparents to petition for visitation; however, even in the absence of laws authorizing it, some state courts have granted visitation rights.
What is a Stepparent Adoption, and How Can I Adopt My Stepchild?
Adoption occurs through the legal process wherein a legal relationship between one biological parent and their child is terminated. A legal relationship is then established between a new parent and the child. A stepparent adoption is similar in process. It involves establishing a new legal relationship between the stepparent and the child, and the stepparent gains new legal rights in connection with the child.
The actual adoption process varies from state to state. Generally, the process begins with the stepchild’s other biological parent consenting to the adoption. This causes them to relinquish their parental rights. If they do consent, they must sign an “adoption surrender” or “consent to adoption” document. This must be done in the presence of two witnesses and a notary public.
From there, a petition for adoption must be filed with the appropriate court, in addition to any other paperwork the court requests. There may be interviews, family counseling, or home visits required in order to establish that this is in the child’s best interest. The adoption in considered to be final once the court approves it and issues the appropriate paperwork.
What If One Biological Parent Refuses to Consent to the Adoption?
As previously mentioned, a stepparent adoption cannot move forward without the consent of the biological parent whose parental rights will be terminated. If that parent refuses to consent, the other biological parent and the stepparent may still be able to pursue the adoption.
Consent of the other parent may not be required in cases involving:
- Abandonment: Child abandonment indicates that the parent has been absent and fails to communicate with or financially support the child for a specified period of time. The abandonment period varies by state, but is generally between six months to one year. In cases involving abandonment, the non-consenting parent is generally still entitled to notice. They should be given the opportunity to respond to the adoption proceedings;
- Best Interest of the Child: The best interests of the child are always placed above any other determining factors. If the court determines that the legal relationship between the child and the stepparent better serves the child’s best interests than the legal relationship between the child and their biological parent, consent from the biological parent may not be required. However, they are still entitled to notice and opportunity to respond; and
- Parental Rights Previously Terminated: if the biological parent’s parental rights have already been terminated, there is no need for their consent to a stepparent adoption.
Other consent required in a stepparent adoption is that of the biological parent who is married to the stepparent. Some states additionally require the consent of the child to be adopted. States that require the child’s consent generally do so if the child is at least fourteen years old.
What are Some Other Considerations in a Stepparent Adoption, Such as a Stepparent’s Rights After Adoption?
Once a formal adoption has been finalized, the adopting stepparent is entitled to all the same legal rights as any biological parent. This is true even in the event of divorce between the stepparent and biological parent.
In cases where a stepparent and biological parent divorce without adoption, the two parents may agree to a joint custody arrangement, or a visitation schedule. However, the biological parent has the right to revise this agreement at any time without consequence. This because the stepparent has no legal rights to the child.
Adopting a stepchild also ensures inheritance rights. The child is legally allowed to inherit property from their stepparent, as well as from the stepparent’s family members, as a biological child normally would.
Additionally, adopting a stepchild could assist in providing health insurance coverage for the child. Some insurance carriers do not provide coverage for stepchildren who have not been adopted by their stepparent.
Do I Need an Attorney for help with Step-Parent Adoption?
If you would like to pursue adopting your stepchild, or obtaining visitation rights, you should consult with a well qualified and knowledgeable adoption attorney.
An experienced family law attorney can educate you on your state’s specific laws, as well as guide you through the adoption procedure. Alternatively, if you need assistance in asserting your rights, an experienced attorney can help you with that as well.