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.  

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.

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.