When You’re Legally the Child’s Parent
Your ability to get custody of a stepchild would largely depend on whether or not you’re legally the child’s parent. In most cases, stepparents are not legally considered to be a child’s parents. Per the law, a child can only have two legal parents. These parents do not have to be biologically related to the child in any way. For instance, if you and your spouse adopt a child, you would both be considered to be the child’s legal parents even though you’re not related to the child biologically. In that situation, you and your spouse would be the child’s parents in the eyes of the law and the child’s biological parents would not legally be considered to be the child’s parents. The same is true for stepparents who have legally adopted the children. Stepparents can only legally adopt a child if one of the child’s biological parents has agreed to relinquish their rights so that the stepparent can adopt. Alternatively, there may be space for a stepparent to adopt a child if one of the biological parents have died or is unknown.
So, I Might Never See Them Again!?
If you are a stepparent, and you have not legally adopted the stepchildren, you may never see them again in the event of divorce. It will likely not matter how long you have been involved in the child’s life, nor is it likely to matter how close you are to the child. Stepparents generally do not have rights to the children after divorce, even if the stepparent was effectively a parent-figure for the child. There may even be instances where it is in the best interests of the child to have a relationship with the child after divorce, particularly in cases where the stepparent has assumed the role of parent for the child’s entire life. Nonetheless, that would not necessarily give the stepparent a right to custody and/or other rights to the child if no legal adoption has taken place. Generally speaking, stepparents do not have much recourse when it comes to forcing an adoption to take place. The only way a stepparent would be able to attempt to adopt the stepchildren without their spouse’s consent would be to prove that their spouse is unfit to care for the spouse. However, another problem emerges: the stepchild’s other biological parent. Even if you were able to prove that your spouse is unfit to care for your stepchildren, the courts would likely just give custody to the children’s other biological parent—they wouldn’t necessarily just allow you to adopt the child, assuming there’s another biological parent who’s been involved and is fit to be a parent.
Is Adoption the Right Choice?
Parents need to weigh their options carefully when considering whether or not to allow a stepparent to adopt a child in the first place. Legally speaking, a child cannot have three parents. Therefore, if you want your spouse to legally adopt your child, someone will have to vacate the role of legal parent so that the stepparent can adopt the child. If your ex is able to care for the child and wants to be involved, it would be nearly impossible to force them to terminate their rights to the child; assuming your ex is fit to be a parent, they would most likely have to voluntarily relinquish their rights to the child before your new spouse could adopt the child. Most biological parents aren’t willing to do this. Even if your ex is willing to do this, there are other considerations to be had. For example, if you and your new spouse get a divorce, your new spouse will now have rights to the child.
Could the Worst Really Happen?
If a stepparent has legally adopted their stepchild, and there’s a divorce, it is technically possible that the stepparent will get full custody while the biological parent would get the bare minimum. Generally speaking, parents who are capable of meeting a child’s physical, emotional, and mental needs have at least a chance at 50/50 custody. However, if a stepparent adopts a child, and the biological parent is somehow incapable of caring for the child and/or poses a threat to the child, it is possible that the biological parent would at least temporarily lose access to the child. In some extreme circumstances, it could be possible for a biological parent to lose all rights to a child while the stepparent maintains full physical custody. However, it should be noted that such a situation would typically involve substance abuse and/or child abuse/neglect, and the biological parent would be given numerous chances to rectify the situation. So, while it would technically be possible for an adoptive stepparent to—in some circumstances—take the child and never let the biological parent see them, it would be extremely unusual.
When You Need Legal Advice
If you’re filing for divorce, and you believe that there’s a reason you should have custody of your step-child, you will likely need an attorney to represent your interests in the matter. When you’re engaged in a high-conflict custody battle, CoilLaw is here for you. Contact us today to schedule your initial consultation.
