What Rights Do Step Parents Have in Virginia?

What Rights Do Step Parents Have in Virginia?

There are many different situations where people have questions about their rights as stepparents. Often these questions come up because something has changed – the stepparent is divorcing the child’s parent, the child’s parent has passed away, or the stepparent realizes they want to have legal rights as a parent for various reasons. Here are some things to know about the legal issues affecting stepparents in Virginia:

Step Parents Rights in Virginia

You have no automatic, guaranteed rights as a stepparent in Virginia. However, there are steps you can take to deal with different situations as they arise. 

First, let’s talk about stepparent rights in joint custody. There are many different ways that people come together as families. Sometimes only one legal parent (either a biological or adoptive parent) is in the child’s life for various reasons. In this case, they might get married/remarried, and the stepparent may play an important role in the child’s life. There are other situations where both legal parents are present in the child’s life, and the child may spend time with both. One or both legal parents may remarry and the stepparents may also play important roles in this child’s life. In either situation, things may go smoothly for some time, but there are circumstances where legal questions come up.

Step Parents Rights and Wrongs

Here are some examples of common scenarios where a person might find themselves needing legal advice about their role as a stepparent:

• Bob married Joanne when her daughter Katie was a toddler. Katie’s dad was never in the picture and Bob has assumed the role of parent in her life. When Katie is in middle school, Joanne dies and her parents want to assume custody of Katie, who prefers to stay with Bob. Suddenly Bob realizes that he has no legal status as Katie’s father, even though she’s been calling him “dad” for years and he considers her his child.
• Angela and Tom have been married for ten years. They have two kids together and Tom has primary custody of his son, Cody, from a previous marriage. Tom is frequently busy at work and Angela has done most of the parenting for all three kids for the duration of their marriage, except for when Cody visits his mother every other weekend. Angela and Tom finally decide to divorce, and the children all express a desire to live with Angela, as Tom is seldom home anyway. Angela realizes that she has no legal rights as Cody’s mother, even though she has filled that role for the past decade. She doesn’t want to send Cody to live with his absent father, but doesn’t think she can ask the court for custody of a child who isn’t legally hers.

Are there any legal remedies for Bob, Angela, and the children involved in these examples?

The state of Virginia maintains that while stepparents don’t have rights regarding their stepchildren, they are a class of people with a “legitimate interest” in the child’s welfare. This means that stepparents do have a legal right to petition the court for custody or visitation of a stepchild, although it is not guaranteed that the court will grant their request. For the petition to be considered, the stepparent and their attorney will need to provide “clear and convincing evidence” that the child’s best interest is served by granting the stepparent custody or visitation.

In the above example, Bob’s lawyer could explain to the court that Bob has essentially been a father to Katie for many years. He packs her lunch, drops her off and picks her up from school, helps her with homework, goes to her soccer games, and is a daily presence in her life. She only sees her grandparents a few times a year, barely knows them, and doesn’t want to live with them. Bob’s argument is that it’s in Katie’s best interest to remain in his custody.

Angela could make a similar argument. In this case, Cody’s mother may have a say in what happens as well. She could ask to have more time with Cody since he will no longer be in a two-parent home most of the time, and Tom may not be around much. On the other hand, if Cody’s mother also travels a lot for work, she may not be able to take on more of the parenting, either. If Cody goes to live with Tom in his new apartment, he may end up spending a lot of time alone or with a babysitter. 

In this situation, Angela could argue that it’s in Cody’s best interest to remain with her and his siblings for at least some of Tom’s custody time. He will be with family, he won’t be hanging around Tom’s empty apartment for hours on end, and he likes spending time with his younger siblings. Angela could also point out that she fills a parental role in Cody’s life, taking him to school and extracurricular activities, helping with his school projects, cooking most of his meals, etc. 

Step Parent Adoptions in Virginia (Child Custody & Visitation)

There are also steps Bob and Joanne could have taken earlier that would have allowed him to already have legal rights in the event of Joanne’s death. Virginia allows stepparents to legally adopt stepchildren if the child’s parent (who is married to the stepparent) consents to the adoption and one of the following situations apply:

• The other legal parent is no longer living.
• The other legal parent also consents to the adoption and the termination of their parental rights.
• The other legal parent is a father who denies paternity.
• The first legal parent is the mother and states under oath that she doesn’t know and has no way of finding out who the child’s biological father is.
• The child was born through surrogacy, and the other legal parent consents to the adoption.
• The legal parent is an adoptive parent who wasn’t married when the adoption was finalized.
• The child is at least 14 years old and has lived with the stepparent for at least five years.
• The other legal parent refuses to consent to the adoption, but the court decides that it’s in the child’s best interest anyway. For example, if the child’s other parent plays little to no role in the child’s life, has never paid child support, and is basically a stranger to the child, the court may decide the minor is better off being adopted by the stepparent.

If one of these conditions applies to your situation, and you and your spouse agree that you should adopt their child, a Virginia family law attorney can help you fill out the paperwork and get started on the process. If the other legal parent has agreed to the adoption, your lawyer will explain how to sign over parental rights in Virginia, and advise you on the forms they will need to sign. 

It will still take some time, but if things go smoothly and the judge approves your request, you will be able to become the child’s legal parent. You will then have the same rights and responsibilities as any other parent. For example, you will have the right to seek custody or visitation of your child in the event of a divorce, and you will also be legally obligated to pay child support if the child spends more time with their other parent.

If you have questions about child custody cases in Roanoke, Virginia or the surrounding area, please contact a child custody attorney at Lugar Law right away for a consultation.