Stepparents and Child Custody

Statistics from the U.S. Bureau of Census find half of all marriages end in divorce, and about 1300 new stepfamilies form on a daily basis. When a person marries someone who already has children, he or she steps into the role of a stepparent. When both spouses have children from prior marriages, such as the scenario in the popular TV show "The Brady Bunch," both parents take on the challenging role of a stepparent. While stepparents often play critical roles in raising children, the legal authority of stepparents is fairly limited.

Courts tend to protect and focus primarily on the rights of biological parents and children. Unless those rights are terminated, a stepparent's ability to make medical, educational and legal decisions about a stepchild is minimal. In general, stepparents cannot give consent for a stepchild's medical treatment nor can they choose what school the stepchild attends. Conversely, a stepchild has no legal right to inherit from a stepparent who dies without leaving a will.

Stepparents do have the right to access a stepchild's school records under the Family Educational Rights and Privacy Act (FERPA), a federal law. This information may include report cards, disciplinary records, and class schedules. The stepparent must be present in the stepchild's home on a daily basis to qualify for access to the records.

Stepparents have an obligation to protect the health and well-being of stepchildren. This often requires both making and enforcement of rules including assignment of chores or setting curfews. Taking on the role of disciplinarian can present a tricky situation particularly for a stepparent having to deal with older children of a new spouse. Success often depends on the consistent co-parenting efforts as well as the strength of the developing relationship between child and stepparent.

A majority of states do not impose a duty on stepparents to financially support stepchildren. However, 20 states have statutes which do require financial support from stepparents. More often, courts generally set child support payments based on the income of the biological parents unless the stepparent has legally adopted the stepchild.

A stepparent's income may impact support payments if the income is substantial. Some state courts require disclosure of information about the income of all adults residing in a biological parent's home. In some states, the non-custodial parent might seek and be granted a reduction in support payments if the stepparent's income substantially increases the overall income of the custodial parent's household.

Since each state has the right to make its own family laws, determining support obligations can become confusing especially when the biological parents reside in different states. Even in states which impose a financial duty of support on stepparents, that obligation usually ends when a divorce between the stepparent and spouse becomes final.

Courts generally favor giving legal and physical custody of a child to a biological parent or blood relative. If a stepparent and spouse divorce, the stepparent has little chance to obtain custody of a stepchild.

Most states require that both biological parents be deceased, disabled or otherwise unable to care for a child before a stepparent can petition for custody. Some states will only consider the petition if the child has reached a specific age. The stepparent must also usually prove that he or she played a significant role in the child's life and that awarding custody would be in the child's best interest. While the best interests of the child typically guide custody decisions, some states impose a higher standard when considering stepparent custody. For example, New Jersey courts require a stepparent to prove that terminating a relationship with the stepchild would be harmful to that child.

Many states have expanded the opportunity for a divorced stepparent to obtain visitation with the former stepchild. More than half the states have laws which either authorize stepparent visitation or allow stepparents to petition the court for visitation rights. For example, Colorado law allows judges to grant visitation to stepparents following a divorce. This policy recognizes that the sudden termination of a long-term relationship with an important adult can be psychologically damaging for a child.

There are several ways by which a stepparent may obtain greater legal authority to make decisions regarding a stepchild. A number of states allow delegation of parental authority to a stepparent by Power of Attorney. However, to protect the rights of biological parents, the delegated authority is often limited in scope and duration. For example, an Arizona law limits the transfer of parental authority to six months. One weakness of this method is that other states may not accept the Power of Attorney.

In some situations, a biological parent might simply provide written authority short of a formal Power of Attorney. As a stepparent, you might have your spouse give school administrators a signed consent form authorizing you to communicate with school personnel and to pick the stepchild up from school. If you plan to travel out of state with a stepchild, it is a wise precaution to carry a letter from your spouse authorizing the travel.

The two certain ways a stepparent can obtain legal authority over a stepchild are appointment as the child's legal guardian or adoption of the child. Similar to granting a Power-of-Attorney, some states allow a custodial parent to assign parental rights to the stepparent for a limited time creating a temporary guardianship. This assignment does not replace the custodial parent's rights. This just allows both parent and stepparent to equally exercise those rights.

For adoption to take place, the parental rights of the non-custodial biological parent must be terminated. These rights may be voluntarily relinquished by the biological parent, or they can be terminated by a court for sufficient cause. Grounds for termination can include abuse, neglect, and abandonment. Consultation with an attorney is recommended should termination of parental rights be a necessity to allow the adoption.

Once the adoption is final, the stepparent has all the legal rights and obligations of a biological parent including the legal responsibility to financially support that child. Similarly, the child obtains important legal rights including the ability to inherit from the stepparent should the stepparent die without leaving a will.

Coming into a family as a stepparent typically presents personal and parental challenges which are only made greater due to legal limits imposed on authority and decision making. Stepparents choose to give love to another person's child and to help guide and influence that child's life. The positive impacts can often be seen in ways both large and small making the long-term rewards worth the challenge. If you have any questions about being a stepparent and going through a divorce call the Law Offices of Peter Van Aulen today at 201-845-7400 for a free initial consultation.