How Does Step Parent Status Work?
To understand how step parent legal rights work we need to first understand what constitutes a step parent. By strict legal definition, a step parent is the spouse of one biological parent of a child, but not the biological or adoptive parent of the child.
A step parent is therefore the spouse of a person who is not a biological or adoptive parent to a child, but who is in a committed relationship with the child’s biological or adoptive parent. Most commonly, you will find that step parents are the people who have married your biological parent or are living with a biological parent as a significant other .
Typically, the relationship between a step parent and a child will be a very close and long standing one. In some cases, this person may have even had custody of the child following a divorce or separation.
The role of a step parent in a child’s life is often a very significant one. Many step parents will step in to take on the role that would normally be played by a biological parent. They may help to support a child financially, transport a child to and from school, help with homework and act as a role model. Many step parents will even help their partner to set rules for their family, discipline their children and work together to nurture their kids.
What Are The Legal Rights For A Step Parent?
Step parents marry in to their relationship with spouses, and become the legal step parent to their spouses children by virtue of marriage. They take on some legal rights and obligations in respect of their step children, most notably from a financial obligation perspective. They do not get parental rights and responsibilities without some court process. However, they can get it through adoption of those step children. If a step parent does not adopt his or her step child, then the law provides that child support shall continue to be payable by the child’s biological parent. There are no child support orders in respect of a step child, as they are not the legal child of the step parent.
If there is no history of court proceedings in respect of the step child and biological parent, then the step parent does not have any legal rights and responsibilities (parenting time and decision-making) in respect of the step child. The step child’s biological parent has a right to make all decisions for the child. The step parent does not have to agree with or follow the decisions of the biological parent, and his or her failure to do so will not result in any penalties in law.
When the step parent has a conflict with the step child, the step parent can discipline his or her step child, and the step child must follow the reasonable rules of the step parent while visiting at their home. The step parent can make and enforce reasonable "house rules" and family rules in respect of the step child, but only to the extent that their own child is also required to follow the same rules.
If the step parent desires to be able to make binding decisions in respect of the step child, they need to adopt the step child, and the child’s biological parent must also consent to that adoption, otherwise they lose their parental rights.
This lack of legal rights creates tension in a family, especially in situations where the biological parent is in frequent conflict with the step child, and the step parent cannot and does not want to act as a voice of reason in the situation. Often, this tension is relieved by the step-parent assuming a parenting role, and becoming the primary caregiver for the child, thereby gaining de facto parenting time and decision-making that is backed up by an adoption process of the step child.
It is difficult to provide generalizations about this topic, as the family law statutes do vary from one province to the next. In some provinces there is specific legislation in place to allow for step parents to have their own parenting time and decision-making with respect to the step child. In other provinces, like Alberta, there is nothing specific, but the courts are considering applications by step parents to have court ordered parenting time or decision-making with respect to the step child, either in isolation of the biological parent, or although with the biological parent.
Legal Rights Through Adoption
In some cases, a step parent may wish or even need to establish a legal relationship with a step child. While there are a number of legal options for providing a step parent with parental rights with respect to a step child, the most common is through adoption. Through adoption, the step parent gains full legal rights and responsibilities with respect to the child. In addition, the child will have the same legal relationship with the step parent as they would a biological parent. As such, the step parent will have the same responsibility as a biological parent would to support the child and provide for all of the love and affection that goes with being a parent.
Under the East Coast Adoption Information Series, there are several steps to follow in the adoption process.
- Step one: you must find out if the adoption is best for the child. This requires examination of the relationship between the step parent and child, as well as whether the child will ever be able to have meaningful contact with the estranged parent.
- Step two: providing consent. The child – depending on age – will have to provide consent to the adoption. In addition, the biological parent will have to provide consent unless they are unable to do so (i.e. in the case of an abandoned child or a child whose biological parent is deceased).
- Step three: notifying the biological parent. The biological parents of all minor children must be notified of the steps toward adoption. All minor children of the adoptive parents must also be notified and consent obtained that the step parent has the right to adopt the child before a court will even consider the adoption.
- Step four: understanding what happens in the adoption itself. During the adoption proceedings, the adopting parent will be interviewed by an adoption caseworker. In addition, the adoption agency will begin preparing a report, with a recommendation for or against the adoption. Once the home study is completed, a report recommending or opposing the adoption is prepared for the court. The recommendation of the adoption agency carries a lot of weight in the decision of the court.
- Step five: court hearing. Upon completion of the adoption home study, the court will hold a hearing. A court official will assess the progress that has been made toward adoption and determine whether a hearing should be held. If a hearing is held, all relevant documents are requested and the judge presiding over the case has the option to appoint an attorney to represent the child.
- Step six: obtaining the decree of adoption. Upon completion of the hearing, the court may or may not grant the adoption petition. If the adoption is granted, a new birth certificate is signed by all parties and a copy filed with vital statistics.
Guardianship Or Custody
While a step parent may wish to assert their rights to their stepchild, they may not have the ability to do so. This is because a step parent does not have the same rights as a biological or legally adopted parent of the child. However, in some situations it may be possible for a step parent to pursue the legal process of seeking guardianship or custody of a step child. Guardianship and custody are often confused for each other, but the two processes are actually different.
Guardianship is essentially granting formal care of a child to a trusted adult. It may be granted in the absence of a parent, or even in spite of a parent’s objections to the guardianship. While any adult may petition the court for guardianship over a child who is not theirs, this type of arrangement is typically only granted in the following scenarios:
- Where the child has parents but those parents are considered incapable of caring for a child
- Where the child has no parents for any reason
- Where the child’s parents choose to give up legal guardianship to another trusted adult
Custody, however, is an option where a step parent seeks to assume the role of primary caretaker in a way that is legally formalized. In an arrangement like this, the biological parents may still have a role to play in the child’s life. Whether this occurs depends entirely on the situation at hand.
Having custody or guardianship of a child gives a step parent a great deal of power in their lives. It also grants a legally protected status which may be beneficial in a conflict situation with the biological parents. However, attaining guardianship or custody of a stepchild is possible only in certain circumstances. Knowing your rights as a step parent is the first step to successfully navigating these murky waters.
What Are Parental Rights And Responsibilities and Consent
Parental responsibility is a term in Colorado’s Divorce laws that refers to authoritative decision-making about children. Typically, parental responsibility focuses on major decisions about kids including education, health, and religious upbringing.
In most situations, because a step-parent is not legally related to the child or subject to custody orders, the law leaves decision-making in these areas to the legal parents. For example, one parent might have legal custody of a child, meaning that parent gets to decide where a child attends school. So, if the custodial parent (the one with decision-making authority) remarries, the step-parent may not exercise any parental responsibilities for the child absent specific orders from the court.
However, there are occasions in which a step-parent does have rights and responsibilities towards a child, but these are generally rare and involve long-term care or guardianship. For instance, a step-parent involves unmarried parents who married to the child’s legal parent and participates in raising the child as if they were a parent themselves; a legal stepparent is someone who adopts a child or builds firm ties with their stepchild because of their marriage to the parent and their function as a parent. To complicate matters further , some parental rights, such as medical, are provided under State statutes and are unrelated to the marital status of the Current guardian. Furthermore, special circumstances like temporary adoption increase the responsibilities of a parent.
For other responsibilities including medical decision-making, the statutes generally place medical responsibilities upon the person with legal custody. When parents (or a person who has been awarded legal custody due to the divorce) remarry, to obtain parental rights to sign consent forms, pick up a child from a medical provider, or other medical matters, a step-parent should do one of two things:
If there are no concerns about obtaining consent for medical services, then getting permission is usually fairly simple. However, note the general rule allows consent when the custodial parent signs. A step-parent who takes care of a grandchild while the parents are unavailable may be subject to Department of Human Services scrutiny for consent because the step-grandparent lacks decision-making authority. Therefore, a step-grandparent who provides regular and expected parenting of the child would be wise to obtain consent forms signed by the parent.
Overcoming Legal Obstacles
Navigating Legal Challenges: Common roadblocks that step parents may face when confronting legal challenges when it comes to seeking legal rights of their stepchildren or step parent visitation with their step children
- Conflicting parental rights A functional family requires some sense of hierarchy, such as the presence of a single legal authority. It is extremely difficult for two adults such as stepparents or co-parents to maintain their personal autonomy in an egalitarian way while also ensuring their kids obey the rules and wishes set forth by the parents.
- Stepparent Visitation Hassles Stepparents with no rights will have to petition a family court as a non-biological stranger to the child to gain the legal right for contact. Most parents will refuse stepparent visitation without a court order. A visitation dispute can result in adversarial relationships among parents and stepparents and often devolves into public fights without resolution.
- The Tug of War for Parental Rights Some parents have a right to claim or deny access to their children based on their own needs and desires instead of concern for the child’s best interests. Thus some parents may deny access to the other parent even if the other parent’s wishes are in the child’s best interests. In such cases, the help of a lawyer is recommended for wresting parental rights from an unreasonable parent.
- Stepparent Visitation Control Some parents do grant access to their children; however, they usually will seek to retain complete control over the schedule. Most parents who agree to visitation quickly back down once the visitation guidelines are in dispute. Courts struggle to find a balance between parental control over their child and the possibility of denying access.
Strategies for overcoming challenges 1) Communication This goes a long way with a good step parent. Oftentimes just asking the biological parent exactly what they want and following where possible gets you out of a sticky situation. It is helpful to write down what the step parent’s needs and rights are and then get agreement from the biological parent. Put it in writing. With signatures. 2) Mediation This is a faster and cheaper way to resolve disputes without going to court. There is not much on the internet for mediation for stepparents, other than the books I suggested above. The family court may have a mediator but it is best to have your own medicator separate and be prepared to pay their fees out of pocket. 3) Parenting Agreement or Order Either of the above may help resolve issues between parents and stepparents. If the matter ends up going to a family court they can issue such orders or you can create one on your own as a written agreement.
Effects Of Divorce Or Separation
The impact divorce or separation will have on a step parent’s legal rights to and relationship with their stepchildren will depend on the circumstances. For example, if a biological parent divorces their spouse but the divorcing spouse does not have any legal relationship with their stepchild, they will not have any parental rights to the stepchild. Therefore, there will not be any step parent rights to visitation or parenting time to protect. That said, this can present a troubling situation from a practical standpoint because, when asked, a stepparent may have spent the majority of the time raising the stepchild, and in many instances, it is the only home they have ever known.
Alternatively, if one biological parent divorces their respective spouse, their spouse will likely have a legal relationship with their stepchild (via a stepparent adoption at least). In those circumstances, the court may be in the position to order that the non-biological parent have parenting time with their stepchild (and potentially even visitation). This is certainly dependant on the facts of each case. In certain circumstances, the courts may also issue orders prohibiting the biological parent from interfering with the non-biological parent’s visitation.
By way of example, if a stepchild was abandoned by a biological parent and that parent’s parental rights are terminated, a stepparent has arguably been the only parental figure in their life and may have "standing" under the law to seek to have that parent removed as a co-parent, and/or to obtain some type of legal protection to confirm the non-biological parent’s ability to maintain the bond they had with the stepchild. Relatedly, the non-biological parent may seek an order that grants them the ability to adopt their stepchild who has been abandoned by their biological parent. For example, under the right circumstances, a court could find that the soon-to-be-adopted child had been abandoned and that the non-biological parent can legally adopt them.
If a married couple with a biological child divorces and one party remarries the other spouse’s biological parent and then subsequently seeks to incorporate their new spouse into the child’s life, the biological parent will often resist that process and may even attempt to remove the stepparent from the child’s life. These situations can be very painful for everyone involved, especially the child. In those situations, a family lawyer with experience in these matters will help ensure that any order made by the court will be in the child’s best interests.
Consult Legal Professionals
When a step parent is pursuing a legal right to a stepchild, whether for custody, parenting time, or financial support, he or she should consider seeking the services of a qualified attorney experienced in handling cases related to either divorce, child custody, or guardianship, depending on the situation. An attorney can analyze your situation and help you determine if legal action is appropriate and if so, he or she can develop a plan for pursuing legal rights. A lawyer can also handle legal paperwork and representation. Moreover, an experienced family law attorney can advise you on how best to handle the matter with the biological parents to minimize familial conflict.
Consulting an attorney early in the process can increase the likelihood of a successful outcome , but it is important to find a good attorney who has experience in cases involving step children as step parents’ legal rights and responsibilities are different than those of biological parents. Attorneys with experience in the specific matter you are dealing with are particularly valuable since they know the particulars of the law both generally and in your specific county or community, and so can help you formulate the best strategy for your situation. They can also advise you on other available resources in your community that may be helpful.