All About Stepparent Rights
The legal rights of a prospective stepparent are modifiable by the parties, and spousal relationships give rise to a host of other legally recognized rights and interests between spouses. However, apart from spousal or in some cases custodial rights, a stepparent likely has very few to no legal rights in connection with a child who is not his or her biological child. Unlike English common law, which does not recognize a legally defined "stepparent" relationship, New Jersey law does include a definition. Specifically, N.J.S.A. 9:2-4.1 states that a "stepparent" is a person who is married or was formerly married to the "natural parent" of a child, but does not have any parental rights over the child and does not have the right to visitation with the child.
In other words, a stepparent relationship does not create the same degree of rights and responsibilities as a natural or adoptive parent relationship. As such, a stepparent has no right to visitation with a stepchild or the right to custody unless he or she adopts the child. This is because visitation with a stepchild creates relationships with more than one parent or custodial figure. The court has noted that the presence of more than one potential person with parental rights creates "confusion and friction" that the state’s adoption laws are better suited to resolve.
In the absence of adoption, a stepparent in New Jersey may be able to pursue visitation under the "best interests of the child" standard (depending on the individual circumstances of the situation) pursuant to N.J.S.A. 9:2-7.7 , which governs visitation for "other persons." That statute contains two separate sections, one of which governs situations where the parties have had de facto custodial relationships. N.J.S.A. 9:2-7.7 provides that the court shall grant standing to permit visitation with a child to a person not a grandparent upon a showing that the person has had a "parent-like relationship" with the child, either of the following exists:
The second section of the statute governs situations where the parties have not had a de facto relationships, but where visitation may be appropriate based on the best interests of the child. This section would be applicable to situations where a stepparent seeks to establish visitation with a child who does not have a de facto relationship with the child.
The best interests of the child standard of visitation for a stepparent will usually take into account a number of factors, including whether: outside the de facto relationship section of the statute, New Jersey law contains few other references to stepparents or potential stepparents. Outside of the adoption context, of which there are no presumptions in favor of potential adopting parents, the only reference that may apply is the Domestic Partnership Act. Where the parties satisfy the requirements of the statute, each partner may be a "co-parent" of the other partner’s biological or adopted children. This means that the biological or adopted children may engage in a stepparent relationship. However, the law contains no presumptions regarding the rights of stepparents who have never been domestic partners.
Stepparent Custody And Visitation Rights
Even when a stepparent is caring for a child, he or she does not have any inherent legal rights to visitation or custody. The biological parents of the child have the legal right to make decisions regarding that child’s care, visitation or custody. While ongoing support or visitation following a divorce may be the right thing to do, it is not court ordered unless the biological parents decide that it is.
In the absence of a divorce or other decree that determines when and how a child will visit with a stepparent, the stepparent will not have any legal rights.
That said, it is possible for the biological parents to "give" a stepparent rights to visitation or custody, which would then give the stepparent the legal right to see the child based on those terms.
In order for the stepparent to have visitation rights with the child, the biological parents must agree to that arrangement. That is often true even if the stepparent lives in the home with the child. Thus, if a parent chooses to take her child out of the home, the stepparent cannot legally object to the new arrangement. As far as the law is concerned, visiting a child is a privilege, not a right.
Even following the divorce of a child’s parent, a stepparent does not have rights to visitation or child support. These rights belong only to the biological parent and the stepparent is simply not considered a party of interest in the matter.
Depending on the severity of the behavior, such conduct might be enough to warrant modification of a custody order or grounds for termination of visitation altogether.
It is also possible, though unlikely, for a stepparent to be granted visitation or custody of a child in circumstances in which neither parent is involved.
The Role Of Adoption In Stepparent Rights
When a stepparent legally adopts a stepchild, all of the parties involved experience potentially profound changes. In the vast majority of cases, a stepparent who adopts their spouse’s child or children obtains several (if not all) of the biological parent’s related rights and responsibilities. Adoption is a legal procedure that severs the child’s relationship with the biological parent and establishes the legal relationship between the adopting stepparent and the child. However, the biological parent’s obligations under court makes have a significant effect both on the soon to be deceased’s estate, and on the adopted child’s ability to claim certain benefits. Again, specific laws apply, however the following represents the most general interpretation of the law.
Income Tax
Of course, for income tax purposes, the adopted child will be treated as the natural child of the adopting parent or stepparent. This means that the adoptive stepparent can claim tax credits on behalf of the adopted child. The best way to determine whether adoption is right for you, and yours, is to discuss the options with your attorney.
Authority to Consent
The biological parent of a child has the right to consent to the adoption of his or her child. The stepparent’s authority to consent to the adoption of his or her stepchild (after the biological parent’s death) depends on the rights of the biological parent under court makes, which apply between natural parents and non-natural parents. So, as an example, if the biological parent of a child has physical custody of the child or children, the stepparent would have authority to seek adoption of the child or children. However, in almost every case, the stepparent would need the approval of the biological parent of the child or children in order to complete the adoption.
Rights to Inherit
As established above, once a child is legally adopted by the stepparent, all related rights and responsibilities of the biological parent terminate. This includes rights to inherit property, care for, and control of the child.
Intestacy Laws
All states have specific laws regarding the intestacy laws for minors. Intestacy laws include inheritance rights for adopted children. Unfortunately, until the adoption is finalized, the child has no rights to the estate of the deceased biological parent. If the adoption is completed after death, the child has all legal rights to inherit from the estate of his or her deceased biological parent.
After the adoption is final, and if there are no later events warranting reopening of the estate (such as will contest litigation), the child has rights to the estate of the deceased stepparent.
Guardianship, A Stepparent Alternative To Adoption
If the biological parent does not consent to or oppose the adoption, then he or she will lose her parental rights at the time the adoption is finalized. See O.C.G.A. § 19-8-6(a)(2). There is at least one significant exception to this loss of parental rights – guardianship. A stepparent cannot be appointed as a guardian if the biological parent is still alive and has not lost his or her parental rights. O.C.G.A. § 19-9-6(b)(1)-(3). Thus, the stepparent must file for adoption.
However, if the other biological parent has lost her parental rights, the surviving parent can still maintain for a legal guardianship for the child. This legal guardianship could be as an alternative to adoption. But, like adoption, a legal guardian cannot take the child out of state without the permission of a superior court. O.C.G.A. § 19-9-6(d).
A stepparent may file for legal guardianship of a child when the biological custodial parent is deceased. O.C.G.A. § 19-9-2(b). Again, this only applies if the other biological parent has lost his or her parental rights.
Like adoption, without the other biological parent’s consent, the petitioning stepparent for guardianship must demonstrate that there is a reasonable effort made to secure the consent of the other biological parent. O.C.G.A. § 19-9-2(c)(1)(D). The exceptions to this requirement are: (1) the other parent is deceased; (2) the where the identity of the other parent is unknown; (3) the other parent is not subject to the jurisdiction of Georgia; (4) the other parent is unfit; (5) where the other parent has abandoned the child; (6) where the other parent has lost his or her parental rights.
The other biological parent cannot be forced to pay child support during the guardianship. O.C.G.A. § 19-9-8(1)(D).
If a child is neglected or abused by his or her biological parents, a temporary guardian can be appointed for the child. O.C.G.A. § 19-9-8(a). A temporary guardian may not be appointed if a biological parent is currently providing adequate care for the child. O.C.G.A. § 19-9-8. See O.C.G.A. § 19-9-2(c)(5). If the biological parent dies during the temporary guardianship, the temporary guardianship will become a legal guardianship. If the temporary guardianship is over a neglected or abused child, then the biological parent will lost his or her parental rights. O.C.G.A. § 19-8-8(a). Because the biological parent has lost her parental rights, the stepparent would be able to maintain the guardianship.
Like adoption, the biological parents may file an objection to the granting of the petition for legal guardianship within 30 days from the date that the petition was filed (or the publication upon it is ordered). O.C.G.A. § 19-9-6(g)(1).
Stepparent Rights in Divorce or Separation
The best way to describe the legal position of a stepparent who divorces a biological parent or separation from a biological parent is "peripheral." Unless the court has granted that stepparent parental rights and responsibilities, they do not share in the parental right and responsibilities with the biological parent. They cannot get parent-child contact without coming to an agreement with the biological parent or applying to court for parent-child contact. A stepparent can ask the Court for stepparent contact, however, the Massachusetts courts give substantial deference to the biological parent(s) concerning their desires on this issue when parenting plans are made . A stepparent also has no authority to make decisions concerning a child’s medical care, education, travel, etc., without coming to an agreement with the biological parent(s) or seeking a modification orders in Court. The more significant issue, however, for the biological parent and the stepparent is whether the stepparent can be obligated to pay child support for the child. Courts apply statutory presumption concerning a stepparent’s responsibility to pay child support to biological children. Absent an 18 or 21 year relationship between the stepparent and the child, child support is highly unlikely to be imposed.
Financial Obligations And Responsibilities
Stepparent obligations do not arise automatically. That means no stepparent has to support a stepchild if the parties’ divorce, for example. In Maryland, the biological parent or parents are the only ones with a legal obligation to support a child—referred to as a minor child of the family—while the child is a minor. That financial obligation can extend until the child is 18 (if still in high school) or until age 19 (if graduated from high school) and can include the child’s health insurance coverage. In cases where a child’s biological parent or parents are not a part of the picture—because, for example, a mother is caring for the child and that child’s mother has died but the father has not been identified and may not have legal rights—the stepparent has no obligation to support the stepchild. If the stepparent has adopted his or her stepchildren, however, the adoption creates legal obligations comparable to those of biological parents for that stepparent. Some stepparents choose to adopt their stepchildren long after they have already been parenting them, but the adoption gives the formerly unauthorized stepparent additional legal rights. In the family law arena, lawyers often say that when the parents are making the agreement, anything goes. In other words, a court might not require a stepparent to pay child support, but the parents may make a mutual agreement to require it. That is a matter for parties to work out together instead of a matter to be imposed upon them by a judge. Although stepparents do not have an obligation to support stepchildren and can contract with a child’s legal parent or parents to avoid that obligation, the presumption under Maryland law is that those agreements are only good until the parties’ divorce. They must be renegotiated after the divorce is filed. And, again, in terms of adoption, the stepparent does have an obligation to support the child(ren) at that point.
Legal Action to Strengthen Stepparent Rights
For those step-parents now in the picture, it is in your best long-term interests to take steps to formalize your role in the eyes of your spouse, former spouse and most importantly, your kids. In some cases, the best decisions for step-parents may involve advanced planning concerning legal documents such as your will, or obtaining a power of attorney.
Wills
Having a will stating the spouse as the child’s guardian is recommended, as this can cement the spouse’s interests in any custody dispute. A lawyer may have the individual witness the signing of their will to demonstrate sound mind as a defense against claims of undue influence.
Power of Attorney
A power of attorney is a legally valid way for a spouse to act on behalf of a stepchild. A parent may sign a document granting a spouse the power of attorney on behalf of his or her children . A parent may also name the spouse as a co-trustee or executor of the estate. If the step-parent is married to a parent with custody of children, this gives him or her full decision-making authority on behalf of the children related to health care decisions, financial, education and other daily life matters.
Adoption
Whereas a will provides legal legitimacy, an adoption can legally link the new spouse and stepchildren, cementing the relationship. If the natural parent is deceased, there is no legal impediment to a stepparent adopting his or her children provided that both parents want this. To obtain or keep parental rights to a child, a parent must be a biological or adoptive parent. If a parent’s rights are terminated, then any stepparent wanting to be adopted must have the biological parent’s consent.
