Stepparents' Rights and Obligations during and after Divorce

A stepparent relationship may have become very important to both an adult and a child during a marriage. If the marriage ends, it can lead to confusion about the nature of that relationship.

The “traditional” family you might have seen depicted on television in the fifties and sixties is not so common anymore. Research shows that less than half of all kids in the United States live in that kind of household. Much more common are blended families – homes with a mix of biological and step relationships between adults and children.

Often, stepparents and stepchildren develop close and loving relationships with each other. But what happens to these special relationships when a blended family dissolves? 

For the most part, laws haven’t kept current with the emotional realities of a stepparenting role. Unfortunately, stepparents often lose their rights to maintain the relationship they’ve had with their stepchildren after a divorce. 

Let’s take a closer look at some frequently asked questions about this type of situation.

What are my legal responsibilities as a stepparent during a divorce? 

While your divorce is pending, you still have the same legal responsibilities toward your family as did throughout your marriage. But while you might perform the daily tasks of a parent, as a stepparent, you typically have no legal responsibility toward your stepchildren except in cases where you’re bound by state law – or you’ve been acting in “loco parentis” (in place of one of the child’s biological parents).

Family laws vary from state to state regarding the legal responsibilities of a stepparent during and after divorce. Twenty states currently have statutes detailing some responsibility of a stepparent toward their stepchildren during or after divorce, depending on a specific situation. These states are:

  • Delaware 
  • Hawaii
  • Iowa
  • Kentucky
  • Maine
  • Missouri
  • Montana
  • Nebraska
  • Nevada
  • New Hampshire
  • New Jersey
  • New York
  • North Carolina
  • North Dakota
  • Oklahoma
  • Oregon
  • South Dakota
  • Utah
  • Vermont
  • Washington

It’s essential to understand your rights under your specific state laws. 

What are my rights as a stepparent?

All state family laws have provisions detailing the rights and responsibilities of biological parents toward their children in the event of a divorce. But this isn’t usually the case for a stepparent. 

As a stepparent, you may have been there since your stepchildren were very young. You may have acted in every capacity that a biological parent would. The relationship may be mutual and loving, and your stepchildren may see you as a parent.

But, legally speaking, you have very few legal rights as a stepparent in a divorce setting. 

Most courts recognize the biological parents as the adults best suited to make decisions for their children. This can make it difficult for stepparents to seek custody or visitation after divorce except under certain conditions. 

Once a stepparent is divorced from a biological parent, the stepparent is typically expected to sever ties. 

Until recently, family laws have focused on protecting the traditional structure of marriage and parenting, leaving stepparents underrepresented in the system. But laws are slowly changing to better accommodate the rights of stepparents. Some states now recognize stepparents in a class known as “persons with a legitimate interest.” This gives them the right to petition for custody or visitation. 

What are the legal implications of a step relationship?

If you are a stepparent and want to maintain a relationship with your stepchildren after your divorce, you may still have options available to you.

Stepparent adoption

As a stepparent, the best way to protect your legal right to maintain a relationship with a stepchild is through legal adoption. In the event of a death or divorce, you would then be recognized as the children’s legal parent. In the case of divorce, you would have every right to seek child custody, visitation, pay or receive child support, or become their guardian in the event of their other parent’s death. 

But children can’t legally have three parents. In the case of adoption, the uninvolved biological parent would need to give up their legal rights to the children before adoption could take place. If the biological parent refuses, the court may force it with sufficient evidence that the biological parent has not been actively involved or has been determined to be a harmful or dangerous influence.  

As a person with a legitimate interest

A court’s primary objective in a divorce involving a child is to make decisions based on the best interests of the child. Therefore, as mentioned above, some states now recognize stepparents as “persons with a legitimate interest.” 

As a person with a legitimate interest, you may be entitled to seek custody or visitation with your former (or soon-to-be former) stepchildren. 

Under normal circumstances, a stepparent may not be awarded custody, but if it can be proven to the court that severing the stepparent-child relationship would be harmful to their well-being, a stepparent may be granted visitation rights. However, these rights would likely include a financial obligation toward the child’s upbringing. 

Am I still considered a stepparent post-divorce? 

As a stepparent, you have played an important role in your stepchildren’s lives and they in yours. Although you are not still considered a stepparent once your marriage has been dissolved, that doesn’t remove the strong and loving connection you’ve developed with them. 

If you and your soon-to-be ex-spouse can work cooperatively, you may be able to come up with a practical solution that would allow you to maintain a connection with them. For instance, your spouse may agree to offer you visitation time with them in exchange for some type of financial support. 

Should I adopt my stepchildren?

Legal adoption is a good way to ensure you have legal rights to your stepchildren. After adoption, you would be seen by the courts as their legal parent. This means you would be afforded all the same rights and responsibilities as a legal parent, including seeking visitation or custody of the child in a divorce. But keep in mind that adoption will require one of the biological parents to relinquish their own parental rights.  

Step-by-step adoption guide

Let’s say your divorce is looming, and you want to adopt your stepchild so they stay in your life after the divorce.

Perhaps one of the most crucial steps toward the adoption of a stepchild is building a strong relationship with that child. It is much easier to step into the role of an adoptive parent if the adult-child relationship is a positive one.

Assuming this to be the case, what are your next steps?

Adoption laws vary by state, so you will want to discuss your particular situation with a family law attorney. Generally speaking, the steps you’ll go through are as follows:

Step 1: Get consent from the custodial and non-custodial biological parent

Your ex-spouse (or soon-to-be ex-spouse, if you’re not divorced yet) will need to be on board with the adoption. If the adoption is successful, you will be co-parents even though you are no longer spouses.

Another adult may or may not be in your stepchild’s life: their non-custodial biological parent. If this person’s parental rights have been terminated, you likely do not need their consent. Otherwise, you would likely need to obtain a formal written document transferring their parental rights to you.

You may have trouble obtaining consent. If you do, consider exploring your legal options with an attorney. They might suggest filing a motion to waive the consent requirement, or they may have other advice that applies to your unique situation.

Step 2: Go through a home study

Overseen by an adoption agency or social worker, this is a process in which you and the living situation you offer are assessed. Expect your physical home, financial situation, medical status, family dynamics, and personal references to all go under the microscope. The goal is to make sure you offer a safe, nurturing environment for the child. 

The home study process may consist of interviews, one or more home visits, and training sessions for the prospective parent. 

Step 3: Petition the court

You will file a petition for adoption with the family court. Although you may no longer be married to your ex, they will likely be required to participate in this filing.

Step 4: Attend hearings

At the hearing, your petition and the findings of the home study will be evaluated. If a non-custodial biological parent is involved, their rights would also need to be addressed. 

Another hearing, called the finalization hearing, typically follows. At this hearing, if all is approved by the judge, the stepparent becomes the legal parent of the child.

Obtaining consent from the biological parent is a potential obstacle in this process. This person may be hard to locate, making it difficult to continue with the process. Or, they may be unwilling to give you their parental rights. In situations like these, legal counsel can be invaluable.

Can a stepparent be a legal guardian?

A guardian is meant to be a stable, supportive force in a child’s life when their legal parents cannot serve them in that manner. While a stepparent is not automatically a legal guardian to their stepchildren, it may be possible for them to take on a guardianship role. The biological parents would still retain all parental rights for the child, but in case of an emergency, guardianship could offer security for the children and legal rights to their former stepparent.

How do you obtain guardianship of a stepchild?

The legal process of obtaining legal guardianship varies by location. However, the general steps are somewhat similar to adoption. You would file a petition seeking guardianship with the court, your credentials and suitability would be evaluated, and a hearing would be scheduled.

The biological parents of the child would both be officially notified and have the opportunity to contest your petition. Even if your co-parent (spouse or ex-spouse) doesn’t object, your stepchild’s non-custodial biological parent might. If this occurs, it’s a good idea to obtain legal counsel.

You are likely to be subject to a background check as well as a home visit. If all goes in your favor, there would be a hearing and a court order providing you with guardianship. This court order is likely to be highly specific, so if you get one, be sure to familiarize yourself with the details.

Emotional dynamics of divorce

Maybe you’re getting divorced and don’t intend to seek adoption of or guardianship over your stepchild. This is a common scenario, and it can be a tough one. The emotional impact depends, in large part, on how long the two of you have been in each other’s lives and how close you have become.

How you might be feeling

As a stepparent who is about to lose their stepparent status, you may be dealing with strong feelings of grief and loss not only over your marriage but also your stepchild. Short of adoption or legal guardianship, there isn’t a standard legal framework available to help preserve your relationship.

You may also be worried about the child and their adjustment to the situation. This is particularly true if you were a significant force in the child’s life and if you think you will have little or no access to them after the divorce.

How the child might be feeling

Like you, the child may be caught in emotional turmoil right now. And this pending divorce may not be the first divorce they’ve gone through. They may feel torn between their loyalty to their biological parent(s) and their affection for you. They may be upset by upcoming changes in their living situation and family dynamic.

Tips for post-divorce life

  • In some situations, it may be possible for you to maintain contact with your former stepchild. The relationship may look different, but if handled carefully, its new shape and form could be just as meaningful. Consider involving a family therapist in this transition. 
  • Even if you maintain a connection with the child, your boundaries will inevitably change. For example, you no longer will have 24/7 access to the child. If a visitation schedule is created, you will have to adhere to that. Try to keep the lines of communication as open as possible with your ex-spouse in this regard.
  • Both you and the child should prioritize self-care. We know that this is often easier said than done. Something that feels “out of control” has happened to your relationship with each other. But you control your relationship with yourself, and the child does the same. With age-appropriateness as your guide, each person should take time for reflection, recreation, and therapy, if appropriate.
Read: Understanding and Protecting Kids' Mental Health in Divorce

The rights and responsibilities of a stepparent during a divorce can be complicated, and they vary from state to state. It’s critical to understand the family laws of your state when making decisions regarding your divorce and your relationship with your stepchildren. 

At Hello Divorce, we are here to answer pertinent legal questions so you can make educated decisions that may affect the ones you love and the rest of your life. Contact us to schedule a free 15-minute call to see how we can help. 


Fewer than half of U.S. kids today live in a ‘traditional’ family. Pew Research Center.


Pew Research Center.

Divorce Content Specialist
Mediation, Divorce Strategy, Divorce Process, Mental Health
Candice is a former paralegal and has spent the last 16 years in the digital landscape, writing website content, blog posts, and articles for the legal industry. Now, at Hello Divorce, she is helping demystify the complex legal and emotional world of divorce. Away from the keyboard, she’s a devoted wife, mom, and grandmother to two awesome granddaughters who are already forces to be reckoned with. Based in Florida, she’s an avid traveler, painter, ceramic artist, and self-avowed bookish nerd.