When a child’s biological parents divorce, the child goes through a very stressful and confusing time. The child may adjust poorly to the changes. However, a step parent can help the child adjust to divorce by providing a loving and supportive relationship. Many step children see their step parents as their own parents and will lovingly refer to them as "Mom" or "Dad."
However, after building this strong relationship, the step parent and stepchild may be separated if the biological parent and stepchild divorce.
Do I Have Legal Rights as a Step Parent?
When you are still married to the biological parent, you may enjoy many of the privileges of parenting, including spending time with the children, cooking for them, driving them to school, and taking them to doctors’ appointments. However, you only enjoy these privileges by virtue of being married to the biological parent. You in fact do not have any legal rights to the children.
When you divorce the biological parent, because you have no legal rights, and you are not entitled to anything. You are not automatically entitled to visitation. You are not entitled to custody. You are not entitled to make legal or medical decisions on behalf of the child, even if you believe it is in the best interests of the child.
Do Step Parents Have Visitation Rights?
In Troxel v. Granville, 530 U.S. 57 (2000), a U.S. Supreme Court case, the Court held that the biological parent has a fundamental and constitutional right to parenting. This includes controlling the child, deciding custody issues, and dictating visitation schedules. The step parent does not have any rights if and when the biological parent objects.
In Troxel, the step parent grew close with the stepchildren during the marriage. When the step parent and biological parent divorced, they agreed on a visitation schedule for the step parent. The step parent desired more visitation, but the biological parent said no. The U.S. Supreme Court sided with the biological parent. This is because the “parental preference” rule, which favors biological parents as the best suited to make decisions for the children, generally prevails.
A U.S. Supreme Court decision is binding on all federal and state courts. While the Troxel case may sound disparaging, the biological parent and step parent can agree to a visitation schedule.
The “best interests” standard is also used to determine visitation and custody for parents and other guardians. The best interests of children will be considered when determining whether a step parent can have visitation and other rights.
Cases where the step parent was married to the biological parent for a long time, financially supported the child and has a close relationship with the child carry more weight. Also, a step parent may be more successful in their petition in cases where the biological parents is deceased. The child’s other biological parent may not take precedence if they are determined by the court to be unsuitable as a primary caregiver.
Essentially, if the relationship with the step parent is a good one that provides stability and support for the child, and is in their “best interests,”, the step parent is more likely to be granted visitation or other rights.
Step Parent Visitation Laws by State
The Supreme Court decision is binding on state courts, which means that if a visitation case is taken to state court, the Troxel decision will be binding, but in the absence of a court case over the matter, there are laws regarding this type of visitation. They vary by state. There are over twenty states that authorize step parents petitioning for visitation in their statutes.
In some states, such as Tennessee, Ohio, Louisiana, Delaware, Kansas, New Hampshire, Oregon, Virginia, Wisconsin and California, step parents are explicitly named in the law as being able to petition for rights.
In other states, they are considered to be interested third parties, who may request visitation. These states include: Alaska, Connecticut, Georgia, Hawaii, Illinois, Maine, Michigan, Minnesota, Nebraska, New York, Texas, Washington and West Virginia.
There are states that do not have statutes allowing for step parents to petition for visitation, however, even in the absence of laws authorizing it, some state courts have granted visitation.
What is a Child Visitation Agreement?
A child visitation agreement is an agreement signed by both parties that outlines the visitation schedule of the biological parent and step parent. The child visitation agreement may cover:
- Location of visits;
- Summertime or other school breaks;
- Birthdays; and/or
- Out-of-town vacations.
These agreements can be made ahead of time, or be more flexible depending on the relationship between the parents. It’s important to keep in mind that a flexible agreement will give the child the most peaceful and seamless transition from a two-parent household to a custody agreement.
Do I Need a Lawyer to Enforce Visitation?
While a step parent who has not legally adopted the stepchildren has no legal rights to visitation, a local child visitation lawyer can help you negotiate visitation rights with a biological parent. An attorney will have years of expertise drafting child visitation agreements and can help you enforce the child visitation agreement if the biological parent violates it.