From Parenting to Adoption to Custody & Visitation
Stepparent relationships are a common part of family life in the United States. Today, over 30 percent of all weddings in the U.S. have at least one of the spouses bringing children into a new marriage. Regrettably, over half of second marriages end in divorce.
The entire landscape–the commonality of stepfamilies and the painful reality that they may deal with divorce, opens the door to what happens with the relationships children develop with their stepparents. Do stepparents have rights? This applies to everything from parenting during a marriage, to custody and visitation after a divorce and the right to adopt stepchildren as their own.
Colorado law starts with the presumption that stepparents do not have rights. Parental rights are presumed to be with the child’s biological parents. However, there are several very reasonable legal avenues to gain at least limited legal rights and possibly more, depending on the circumstances.
A Stepparent’s Right to Be a Parent
The first right any stepparent needs to focus on is the right to parent the children that will be living under their roof. Even if the children’s biological parents have a workable relationship and live in reasonable geographical proximity, it’s nearly impossible for anyone to marry a child’s primary custodial parent and not have the need to exercise parental duties and responsibilities themselves. For example…
- A ten-year-old child needs written consent for the field trip their class is taking tomorrow. The child’s biological parent is out of town on business. Is it really necessary to get the non-custodial biological parent to come over and sign the form?
- The kids need to be taken to the doctor. The stepparent does much of the work in the day-to-day care of the children and would be a natural choice to take them in for their checkups. Do they really need to get the permission of the biological parents to make any medical decisions at the doctor’s office?
- The stepparent attends religious services weekly and wants the kids to do the same. The custodial parent is modestly supportive of the idea but doesn’t do so themselves and really doesn't push the issue. Can the stepparent require the kids to come with them to services?
- Before leaving town on business, the custodial parent firmly tells the 16-year-old that under no circumstances are they allowed to go to that party where college students are present. The 16-year-old does so anyway. When they come home, they’re intoxicated and busted by the stepparent. The custodial parent will be gone all week. Does the stepparent have the authority to levy discipline or does the non-custodial biological parent need to be summoned?
- Or on an even more basic level, the 10-year-old repeatedly disrespects the stepparent to their face. Does the stepparent have the parental authority to do something about it?
The answer to the first three questions is no. Absent any legal permission, a stepparent does not have the right to make medical decisions or sign permission slips or do anything else that would fall under the category of legal custody. Legal custody pertains to decisions on religion, education and health care and they belong to the biological parents. The original divorce settlement would have spelled out how that is to work, and it would not have included the stepparent.
The answer to the final two is “probably.” Stepparents who live under the same roof as their stepchildren assume certain legal responsibilities of parenthood–food, shelter, and basic care. The right to exercise basic discipline comes with that. This presumes that the punishment levied falls within the framework of what a reasonable person would consider normal.
It’s important to note that all these answers are simply a legal starting point. The child’s biological parents might find that it serves everyone’s interest if the stepparent has more authority to act. The non-custodial biological parent might not want to be summoned for something as basic as a permission slip, or even something as important as when the child applies for a driver’s license.
Our premise is that the biological parents have a functioning parental relationship. In situations like these it’s not uncommon for the non-custodial biological parent to have at least a basic respect for the competence of the stepparent. That might mean the non-custodial parent is fine with the stepparent doing things like making some low-level medical decisions when the kids are at the doctor’s office.
Legal documentation can be drafted to ensure a stepparent has the basic rights necessary to be a parent in the day-to-day life of the child, while still protecting the non-custodial parent’s rights on bigger decisions, such as major medical procedures, where to attend school, and what, if any, religious practices the children will participate in.
A Stepparent’s Right to Adopt
There are plenty of cases where the relationship between the stepparent and the children flourishes, so much so that there is a desire that they become one family. This is a step with great meaning to those involved on a personal level, and carries significant legal implications, starting with inheritance rights. But can it happen?
Under our hypothetical example above, which presumed both biological parents were taking an active role in the life of their children, the answer would be no. But not all non-custodial biological parents are as involved with their kids as the hypothetical one above. In the real world, there are biological parents who skip out on their legal obligation of paying child support and forgo their legal rights to have visitation time with the kids.
Taken to an extreme, the abandonment of these rights and responsibilities can open the door to stepparent adoption. If the abandonment by the biological parent–defined as the refusal to pay child support and not being physically present for the kids–has gone on, uninterrupted for a year, the children are considered legally abandoned by at least one parent. Ergo, the stepparent can, potentially, adopt the children as their own.
A Stepparent’s Right to Visitation
The reality of second marriages ending in divorce can lead to the question of a stepparent securing visitation rights with the children. It’s quite possible that time the kids have spent with the stepparent has resulted in significant bonding time. Imagine, in the classic Rodgers & Hammerstein musical The Sound of Music, if the characters played by Christopher Plummer and Julie Andrews had gone through a divorce. It’s safe to say that the female lead and the children would have still wanted their time together legally protected because they shared a significant bond.
In the state of Colorado, (as with most states in the U.S.) getting that visitation time can be an uphill battle. Once again, the stepparent begins the process without any inherent legal rights and must demonstrate to the court why visitation should be granted.
A family court in Colorado will look at the significance the stepparent has played in the life of the child and the length of time that relationship has gone on. Two contrasting examples will illustrate how a court is likely to approach the matter…
*In one example, you have a stepparent who marries the parent of a four-year-old. The stepparent takes on the day-to-day responsibility of parenting. Over the next ten years, they take that child to school, make their meals, and run them to all their extracurricular activities. The child loves the stepparent as much as a biological parent. When the child is 14 years old, the divorce happens.
*In a second example, the stepparent marries the parent of an 11-year-old. The stepparent works a stressful job and can’t always be around on the evenings and weekend. The stepparent genuinely cares about the stepchild and wants to be a part of their life, but they just have a hard time getting away from work. That same problem also impacts the marriage, which also ends in divorce when the child is 14 years old. The child likes the stepparent and has no hard feelings, but in the same way they like the company of their fun aunt or uncle.
As the court weighs these contrasting examples, the best interests of the child will be paramount. That’s more than just a catchphrase. It’s terminology with deep legal meaning. It means that even though the stepparent has no inherent rights to visitation and that their soon-to-be ex is fighting the idea of stepparent visitation, a family court must keep the best interests of the child as the primary objective of the settlement.
The stepparent from the first example can certainly make a compelling case that their continued involvement in the life of the child meets the “best interests” standard and should receive legal protection. The stepparent in the second example has a tougher legal road to travel.
A Stepparent’s Right to Custody
A stepparent gaining actual physical custody of the children after a divorce requires something even more compelling than either of the examples from the section above offer. Custody means overriding the legal rights of one (or both) biological parents. It will take extreme circumstances for a court to take this step.
Those extreme circumstances can happen when the biological parents have not had physical care of the child (i.e., kept the child fed and clothed under their, the biological parent’s, roof).
How might this happen? Perhaps the custodial biological parent (the one whom the stepparent married) works in international finance. They are sent to Brussels for a nine-month assignment to review and audit overseas investments. The non-custodial biological parent is either completely out of the picture or at least not interested in physical custody while their ex is abroad. So, the stepparent takes the kids in.
If this arrangement goes on for at least six months, the stepparent can use that as a basis to obtain custody. The only other way a stepparent can gain custody is by demonstrating that both biological parents meet the legal definition of unfit.
Let Us Help
If you’re a stepparent fighting to secure your rights, the Law Office of Greg Quimby, P.C is ready to step up and help. We understand the value and importance of family and know that the concept of family goes much deeper than biological connections. Reach out to us today at (719) 212-4227 or contact us online so we can set up a meeting and learn more about your situation.