Protecting Your Child Access Rights As A Stepparent After The Death Of A Spouse

It was not until very recently in the United States that lawmakers began to address the imbalance in rights for stepparents. Marrying a spouse who has children from a previous relationship endows a step-parent with all the financial and emotional responsibilities of a biological parent, and step-parents are typically very actively engaged in raising the child from a moral perspective.

However, stepparents have historically had few to no rights of access or determination for children after the biological spouse has died. Innovators in family law in states like Colorado have worked on establishing legislation that formalizes the role that stepparents play in the lives of their children-by-marriage, and have made important advances to protect the rights of stepparents, including visitation and access. In this article, we will discuss current legal rights for stepparents, and what happens to stepchildren after the death of a parent, as well as the changes to the legal liability for stepparents who opt to adopt the children of their spouse.

What Happens After Your Spouse Dies?

After a spouse dies, the children by law (unless other provisions have been made) will revert in terms of custody to the surviving parent. Whether the deceased parent was a custodial or non-custodial legal guardian, the right of care and determination passes to the surviving biological parent.

What this means is that the court ordered visitation rights that were guaranteed to the deceased parent are no longer in effect. It can be a heartbreaking situation for step-parents who have been long-term guardians and care providers to their step-children by marriage. The surviving custodial parent can, for instance, decide to move the family out of state, limit access and visitation to the stepparent, or take other measures to isolate the child if no rights are outlined by last will and testament for the deceased spouse or by state law. Visitation can be contested, however, if it is provided in a will.

How Can a Stepparent Move to Legally Adopt a Child?

To legally adopt a stepchild, a stepparent must have the consent and agreement of both biological parents before proceeding. This includes the non-custodial parent unless that parent has physically abandoned the child. When a non-custodial parent agrees to an adoption, he or she is giving up the legal rights and financial responsibilities for the child, which includes child support. Legal liability for damages incurred by the child also pass to the adoptive stepparent.

Older children must also consent to an adoption by a stepparent if they are over a certain age, which varies from age ten to fourteen years, depending on the state. It should be noted that in many states, the adoption consent can be contested, and even revoked, by one or both biological parents.

Is Adoption a Legal Advantage for Children?

Talking about custody and legal provisions for children after the death of one or more biological parents can be an uncomfortable conversation; however, it is an essential one that can protect your child from becoming a ward of the state.

For example, if the stepparent moves to adopt the child legally, at a state and federal level the successful adoptions elevate the stepparent to almost the same status as a biological parent and endow the same privileges as a non-custodial parent. After a stepparent adopts a child, they are guaranteed visitation rights, but they can also be required to pay child support as the surviving non-custodial parent.

The legal right of access is provided, but so is the moral and financial responsibility for support and care in the eyes of U.S. law. In some states, an adoption by a stepparent can remove the legal rights and access to the child by the non-custodial parent. For instance, if a biological parent is non-custodial, but absent from the child’s life, and the custodial parent remarries an individual who wishes to adopt the child legally, the non-custodial parent may be denied all rights to legal visitation and access, but also financial liability (including health care coverage expenses) for the child.

Step-child adoption law requires an application, and the stepparent is subject to several checks, including a health evaluation and criminal background review. A preliminary hearing is required where the reasons for the adoption and objections can be reviewed in court, and visitation or inspections by child and family services are also required to ensure that drug or alcohol abuse, residential basic needs, and other items of concern are observed and reported to the court. A new birth certificate will be provided for children that are adopted legally by a stepparent.

Explaining Your Reason for Adoption to the Custodial Parent

The adoption of a child by a stepparent does not impact the child’s legal right to inherit from either biological parent; it does give the child the legal right to be an executor for the stepparent and to inherit legally from the step parent’s estate. This is an advantage for children, who acquire additional resources and less red tape when it comes to inheritance in trust, and other estate issues.

If both biological parents become deceased or unable to care for the children, a stepparent who is a legal adoptive guardian can step in to provide care and administration on behalf of the family and per the children’s needs. This can offer a tremendous amount of relief and peace of mind for both biological parents.

Many divorced parents allow a stepparent to legally adopt the children, and non-custodial parents continue to pay support as per the standard arrangement and feel confident about providing the children with a third legal guardian if both parents die. This helps avoid legal complications that can have stepparents fighting in court over custody of the children or against other less-immediate family members when it comes to custody for the children.

If both the biological parents and the stepchildren agree, legal adoption of children by a stepparent can offer financial and emotional security, to continue to provide loving, family care in the event of a tragedy. For co-parents who have a positive and cooperative relationship with one another, it can be the best way to provide continuity and safety for your children, with a contingency plan that endows a loving stepparent with the legal right to care for the child.