Legal Rights of Stepparents Vs. Real Parents

By Beverly Bird

Historically, stepparents have had very few rights with regard to their spouses’ children. That began to change after 2000, with states such as Colorado and Massachusetts passing legislation to recognize stepparents’ roles in their stepchildren’s lives. Laws vary from state to state, but rights often come down to a child’s relationships with his stepparent and his biological parents.

Custody Rights

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.

Visitation Rights

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.

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Temporary Guardianship

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.

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Divorce Laws and a Father's Rights in the State of Kansas

References

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Remarriage & Custody

Remarriage is usually not a reason for a change in custody unless other factors are involved. Parents naturally move on to new partners after a breakup. The fact that they have a child doesn’t change this. Unless the new relationship affects the child or his relationship with his other parent, courts are not likely to modify custody because of it. Judges are obligated to place custody based on the best interest of the child.

Divorce Law on Moving Kids Out of State

The issue of moving children out of state either before or after your marriage ends is such a hot button that the federal government has drafted legislation to address it. The Uniform Child Custody Jurisdiction and Enforcement Act regulates which state has jurisdiction over custody issues if a child moves. States have their own individual laws as well. Although they vary to some extent, you generally can’t move with your kids across a state line without the express written consent of the other parent or a court order.

How Is Child Custody Decided In Divorce?

Every state defers to a concept called the “best interests of the child” when deciding custody issues. But different states interpret this guideline in different ways. As a parent, you might do your best for your child every day, only to find that a judge disagrees with your assessment. In the end, it comes down to the opinion of that judge and what he and his state believe to be the most important factors in a child’s life. But some standard tenets apply.

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