Blended families are increasingly common in the United States, and many stepparents wonder what their legal rights and responsibilities to their stepchildren are. Even though many stepparents are closely involved in their stepchildren's day-to-day lives and form loving bonds with them, stepparents' legal rights are very few. Family law varies significantly by state, but many stepparents find themselves without the legal means to care for their stepchildren when the children's biological parents are unavailable, deceased or in conflict with the stepparent. Becoming a guardian to your stepchild can be a way to change your legal status regarding their care.
Becoming Your Stepchild's Guardian
According to the Stepfamily Foundation, 75 percent of stepfamilies suffer from not having access to resources as a stepfamily. Approximately 40 percent of all American married couples with children are blended families, and a recent Pew Research Center study found that 13 percent of American adults are stepparents. Yet the laws provide little support for stepparents.
Whether or not you're close with your stepchildren, if they spend any time in your home, you have a duty of care toward them as you would to any visiting child, or as a babysitter or nanny would. However, many stepparents seek to form closer personal and legal relationships with their stepchildren. Beyond this duty of care, what are the laws governing your relationship with your stepchildren?
Medical Decisions and Stepparent Power of Attorney
Stepparents do not automatically have the legal right to consent to medical treatment for their stepchildren. This can impact something as everyday as a stepchild falling and needing stitches while the legal parent is on a trip and can't be reached.
A parent can authorize a third party to consent to medical care for their child; one parent's signature is enough – the other parent need not sign. A copy of this authorization should be kept with the child's medical records, and the stepparent should keep a copy as well.
Finally, certain states, such as Arizona, allow parents to specify certain activities or situations in which a stepparent is granted power of attorney. These can be valid between certain dates, or limited to certain activities, such as taking the child to the doctor or signing the child up for an activity.
School Decision-Making for Stepchildren
The Family Educational Rights and Privacy Act (FERPA) states that parents or an individual acting as a parent in the absence of a parent or guardian have the right to inspect and review their child's school records. This language has been interpreted to include stepparents if the child lives with the stepparent and the biological parent at least part of the time. However, it's still a good idea to have the child's parent sign a consent form with the stepchild's school that specifically authorizes the stepparent to pick her up and also access the school records. The other biological parent's signature is not necessary.
While FERPA grants the right to review school records, stepparents do not have a natural legal right to make educational decisions for their stepchildren, including day-to-day decisions such as signing a school field trip form.
Inheritance and Stepchildren
If you've prepared a will, your step-children will be able to inherit if you provide for them specifically. However, if there is any ambiguity, such as if you leave a gift to your "children," your stepchildren may not be considered.
If you die without a will, stepchildren generally will not inherit. However, stepchildren are beginning to get some very limited inheritance rights, with the modification of California Probate Code Section 6454 as one example. This statute now states that if clear and convincing evidence exists that the child would have been adopted if not for the legal barrier that existed during the time they were a minority and their stepparent was alive, the stepchild can inherit the estate of the stepparent.
Visitation for Stepchildren
Laws regarding stepparent custody and visitation after divorce vary by state. In Troxel v. Granville, the U.S. Supreme Court upheld parents' rights to the care, custody and control of their children, meaning that parents have a right to decide who has access to their children. This gives stepparents very little legal recourse.
If you have divorced your stepchildren's parent, this makes it harder for you to gain custody or visitation if the ex-spouse objects. In most states, a stepparent can only request custody or visitation if the stepchild's biological parents are deceased or unable to care for them. If your spouse dies and the surviving biological parent refuses to let you have contact with the children, you may be able to petition the court for custody or visitation.
Legal Guardianship and Other Legal Options
There are two major ways for a stepparent to gain additional legal rights: adopting the stepchild or becoming the stepchild's legal guardian. Some states also offer parents the option to delegate certain parental powers, like making medical or education-related decisions, to a stepparent via a power of attorney. The process of adopting a stepchild or becoming a legal guardian varies greatly by state, so always consult a licensed family law professional in your state when considering these steps.
There are big differences between adopting a stepchild and becoming a stepchild's legal guardian. Legal guardianships are temporary, while adoption is permanent. Most legal guardianships end when the child turns 18 or when the circumstances surrounding the guardianship – often the unavailability or disability of a biological parent – have been resolved.
Adoption of a Stepchild
Another difference between adopting a stepchild and becoming a stepchild's legal guardian is that adopting a stepchild severs the legal relationship with the other biological parent. This means that parent no longer has any custodial or visitation rights and is not financially responsible for the child, including being no longer obligated to pay child support.
This is a huge step to take, and most courts are very conservative in granting this status, reserving it for when the other biological parent is deceased, neglectful or disabled and unable to care for the child. In addition, some states require that the child also consent to the adoption if they are above a certain age.
Legal Guardianship of Stepchildren
A legal guardianship, on the other hand, preserves the legal ties between the child and his biological parents, so their rights and responsibilities co-exist with the stepparent's. However, courts often hesitate to grant guardianship if both biological parents are fit and present in their children's lives. Courts are often more willing to grant a temporary guardianship in specific situations, such as a biological parent traveling outside the country, being hospitalized or being deployed abroad. Some states also have a co-guardianship law, where a parent can ask the court to appoint a third party as a permanent co-guardian.
The forms and procedures for obtaining legal guardianship vary greatly from state to state, so always consult with an attorney. Typically, you will need to contact the clerk's office of the court that oversees guardianships in your state and file a petition for the type of guardianship you're seeking. You will need a copy for each party you're required to give notice to, including at least the court and the stepchild's other parent. The court clerk will keep the original copy and mark the others as filed.
Planning for a Guardianship Hearing
Once you learn the date of the guardianship hearing, you will need to hand-deliver copies to the interested parties at least 15 days before the hearing. Your spouse can also deliver the copies or you can hire someone to do it. The party serving the papers must fill out a proof of service form. The interested parties have a right to attend the hearing or to submit a Consent and Waiver of Notice form if they don't want to dispute the guardianship and don't want to attend.
The court will appoint an investigator to interview you about why you want to become your stepchild's guardian. They may also speak to your partner or investigate your home for the report they will submit to the judge. At the guardianship hearing itself, the judge will speak to the child if she's old enough, talk to the interested parties about your relationship with the child, and make a ruling on whether to grant you legal guardianship.