Stepparent Rights

Stepparents Role and Case Study

The first and question to be answered legally, is whether or not the stepparent has the “right” to request visitation as a non natural parent.

See Robert J. Levy, Rights and Responsibilities for Extended Family Members, 27 Fam. L.Q. 191, 195-198 (1993) (discussion of benefits of general rule requiring standing).
The question of standing may arise in a variety of judicial forums for resolving custody disputes between parents and non-parents. Some cases may actually merit visitation rights after the natural parent has died, to protect the child under the civil protection authority.

In many states, a third party (being stepparent or not) may seek custody of a child IF the child has been in the third party’s possession for a specified amount of time preceding the filing. See Uniform Marriage and Divorce Act 401(d)(2), 9A U.L.A. 550 (1987) (person other than parent may commence custody action if child is not in custody of one of his parents; adopted in Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana, and Washington); see also Uniform Child Custody Jurisdiction Act 10, 9 U.L.A. 269 (1988) (if the court learns that a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child, that person shall be joined as a party).

Courts refuse to assume the jurisdiction for custody over stepchildren because generally, the position that divorce can put the stepparent in is alone, and without legal rights to visitation with the children because of the position of the natural parent. However, the courts would be more apt to hear a motion for visitation by a stepparent under more upcoming liberal statues. Each statue varies from state to state.

The "Proposed Model Act Establishing Rights and Duties of Stepparents," 1991 ABA Family Law Compendium 2-5, at the very least allows for reasonable stepparent visitation only if the stepparent is in good standing. Factors to take into consideration are; What is the significant participation in the Childs life, how long has the stepparent been acting in the “role” of parent, what type of existence there is in the emotional relationship between the child and stepparent, and finally, to what degree the stepparent has financially supported the children.

One of the most important considerations for the stepparent to remember is; the stepparent must have good reason as cited above to take away time from the natural parent/s. However, it is not like convincing the court that you want custody. You are not seeking “the best interest of the child” to take some type of custody, you are merely asking for visitation rights. If you intend to ask for custody, this visitation allows you to move closer to the custody issue at hand at which point you would be working toward building a case against the natural parent

What is the standard for granting custody to a stepparent?
The standard must be decided under two different strategies;

What is in the best interest of the child?
Parental Unfitness meaning, the natural or biological parent is not fit to have custody without the stepparent involved.

A stepparent is increasingly becoming more noticed in legal status. It has been a long road traveled because stepparents salary is not considered for child support, the courts traditionally have not recognized the stepparent as having any rights within the scope of the divorce, separation, or custody process. It is an issue in which the statues are now considering more states, and stepparents are able to obtain some legal visitation rights.

Please see Ebook for a completed research on stepparent rights.