How Step Parents Can Obtain Further Parental Rights

Every family is different, and often the parent of a child marries another adult who wants to play a part in the life of the child. Where both biological parents continue to be interested in maintaining their parental rights, there are limits to a step-parent’s legal right to assume a parental role for the child. However, in many instances, there are opportunities for an adult to have their relationship with a step-child recognized by the court.

The Three Legal Roles and Non-Biological Parent Can Have With a Child

Under Virginia law, biological parents are presumed to have joint physical and legal custody over a child, and varying this presumption requires a court order. In conflicts between biological parents, this may entail adjusting the percentage of custody, and awarding child support. If another adult, like a step-parent (or an adult family member of the child) wants to assume a role with rights and responsibilities over the child, then there are three options:

Adoption: An adoption entails an adult taking a child as their own, obtaining, full and complete parental rights and responsibilities over the child. Adoption requires the consent of both bio-parents. Once an adoption is complete, an adoptive parent can even change the child’s birth certificate to list them as the parent of the child. In cases of adoption, no further action is required by the Court.

Guardianship: In the event of the death, absence, or inability of a parent, another adult can seek a court order designating them as a guardian of the child. The court order sets out the parameters of the guardians rights and responsibilities, and the guardian is required periodically report to the court about the welfare of the child. Consent by the bio-parents also is required for guardianship to be awarded.

Stand-By Guardianship: In Virginia, parents can prepare for a possible crisis in which they become unavailable by seeking a court order designating another adult as a Stand-BY Guardian. This person has no immediate rights or responsibilities, but if this order is issued by the court when there is no active crisis, it makes the process of assuming this role go more smoothly should something occur.

Non-Consent by Bio-Parent

While consent is a prerequisite for obtaining one of the three legal roles in a child’s life, this isn’t always easy. A deceased or unavailable bio-parent, or a parent who is incapacitated, may be unable to provide the consent, even if they would be willing. Under Virginia family law, a biological parent’s consent can be worked around by providing proof that the parent cannot provide the consent for a legally recognized reason. It’s important to work with a qualified family law attorney to put together a case for this lack of consent.

Smoothing the Road

In divorce, one spouse may want nothing further to do with the children. Sometimes this is a matter of being unwilling to pay child support or some other reason that they might be willing to forgo all parental rights. During the divorce, as part of the negotiations for division of the estate and determination of custody of the child, a step-parent’s legal rights can be sought. This is one way to make sure that all of the interested adults are cooperative in the process and provide the necessary information, signatures, and consents to allow the change to proceed.

At Reese Law, we work with interested adults in obtaining legal rights for stepparents over their spouse’s children. If you are interested in learning more about how this process can happen for you, contact us for a consultation.


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