The law protects the rights of a natural parent who has both legal and physical custody above all -- meaning her child lives with her and she makes all important decisions on his behalf. A non-custodial parent’s rights sometimes hinge on the extent to which he involves himself in his child’s life. For example, when a custodial parent wants to relocate to another state, courts often base permission on how involved the non-custodial parent has been in his child's life. If he sees his child several times a week, their relationship might suffer more from the move than if he only saw his child twice a month. Courts will sometimes block a custodial parent from moving with the child rather than allow such a disruption. Courts in some states, such as New Hampshire, will consider awarding at least joint custody to a stepparent when he divorces a child's biological parent. This is particularly true if the child has enjoyed a close and loving relationship with his stepparent, but has not maintained a frequent relationship with his other biological parent.
When biological parents divorce and one parent is awarded physical custody, the other parent is almost always awarded visitation. Exceptions exist if the non-custodial parent is unfit or a danger to the child. Colorado law allows judges to also award visitation to stepparents when a natural parent and stepparent divorce. The legislation recognizes that suddenly and unequivocally terminating a child's relationship with an adult who has been an important part of his life could be psychologically harmful to him.
Some states, such as Massachusetts, allow a custodial natural parent to “assign” rights to her spouse in an arrangement similar to temporary guardianship. The agreement must usually be in writing and the stepparent’s rights operate in tandem with the natural parents’ rights -- they don’t replace them. This gives a version of legal custody to the stepparent because he can now contribute to important decisions on behalf of the child. Some states limit the duration of such an arrangement. For example, in Colorado, this form of legal guardianship is good for only nine months. However, a custodial parent has the right to sign another agreement after the nine months have expired.
Death of a Biological Parent
When a custodial parent dies, custody of her child usually reverts to the non-custodial parent, even if the custodial parent named someone else, such as her new spouse, as her child’s guardian in her will. However, some states, such as Colorado, are moving away from this trend. These jurisdictions allow a stepparent to petition for custody of his spouse’s child after her death, especially when the child continues to live with him after his natural parent dies. Ultimately, the court’s decision would most likely rest with which adult can best maintain continuity in the child’s life. A stepparent might be successful in his bid for custody if awarding custody to the natural parent meant uprooting the child to live with an adult he has had only minimal contact with.