Legal Guardianship of a Stepchild

By Robin Elizabeth Margolis

As a stepparent, you provide emotional and financial care for your stepchild, but your stepchild's biological parents have ultimate legal power over your stepchild. This imbalance can create problems in situations where decisions affecting your stepchild's welfare must be made quickly, but you lack the legal authority to do so. Assuming legal guardianship of your stepchild may be one way to address this situation.

Historic Weak Ties

American colonial courts favored stepchildren's biological relatives over widowed stepparents in custody battles. These legal trends left a legacy of ambiguous and complex state laws on stepparents' roles that differ from one state to the next. Your stepchild's biological parents have the legal authority to make final decisions about your stepchild's medical care, schooling and spiritual training, no matter how deeply involved you are with your stepchild's care.

Stepchild Guardianship

Obtaining legal guardianship of your stepchild can provide closer legal ties. You would have the same responsibilities as a parent for your stepchild's care, allowing you to make medical decisions and schooling arrangements. A permanent guardianship remains effective until your stepchild reaches age 18. Your stepchild's biological parents would still be responsible for providing financial support and would retain legal ties to your stepchild.

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Guardianship Limitations

Guardianship court proceedings for minors are usually based on the assumption that one or both biological parents are unable or unwilling to care for a child. If your stepchild's non-custodial biological parent is not an unfit parent, a court may be reluctant to grant a permanent guardianship request. Your state may have a "co-guardianship" law that allows your spouse to ask a court to appoint you as a permanent co-guardian. Temporary guardianship is usually granted when a biological parent is unable to care for a child due to emergency circumstances, such as child abuse or abandonment, or parental problems, such as incarceration, a medical condition or travel outside the U.S. Some states allow biological parents to delegate authority to stepparents through creating temporary guardianships or giving stepparents additional authority through power-of-attorney forms.

Guardianship Laws

Review the legal guardianship laws for your state, and determine what types of guardianship or delegations of parental powers your state might allow you to apply for. The American Bar Association Family Law Section maintains links to family law codes in all fifty states on its "Family Law in the 50 States" web page.

Guardianship Proceedings

Although guardianship forms and procedures are complicated and vary from one state to the next, typically you will be required to contact the clerk's office of the nearest court that oversees guardianships in your state. You will then file a petition for permanent or temporary guardianship of your stepchild. You may also be asked to file other documents as well. You must send a copy of the petition to your stepchild's non-custodial parent. The judge may order an investigation to make sure that you have a stable and safe home. The judge will then hold a hearing at which you, your spouse, the non-custodial parent and possibly your stepchild may be present. If the judge is satisfied with the answers received at the hearing, the judge will issue a court order appointing you as a legal guardian of your stepchild.

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Laws on the Transfer of Legal & Physical Custody to a Relative

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