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Child Custody Rights and Child Support Obligations for Step-Parents After Divorce

UPDATED: February 8, 2020

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In many ways, stepparents are legal strangers to their stepchildren. This is mostly because they are not biologically related to their stepchildren. The laws that would determine the rights and obligations of natural parents with regard to child custody rights and child support do not generally apply to stepparents. This begins to change if stepparents take legal actions to form bonds to their stepchildren. Laws regarding stepparents are state-specific. Consult an experienced attorney in family law to help you answer your unique questions regarding child custody rights and childsupport in a stepparent situation.


Typically, there are two ways that a stepparent can gain child custody rights to a stepchild. The first is for the stepparent to marry or enter into a legal domestic partnership with one of the stepchild’s biological parents. The second is for the stepparent to formally adopt the stepchild. A stepparent can take one or both of these actions to gain legal rights to a stepchild.


Stepparents become legal parents and may have child custody rights if they legally adopt the stepchild. Usually, one of the biological parents has to give up their legal rights to the child for this to take place. A court can order a stepparent who has legally adopted a child to pay child support following a divorce. A stepparent who has legally adopted a child can ask for and expect to receive child custody following a divorce.


The law is less clear on what happens when a stepparent only takes the action of marrying or entering into a legal domestic partnership with the child’s biological parent. The laws in different states vary on whether a stepparent in this situation may have child custody rights or pay child support. In some states and situations, the stepparent may be ordered to pay child support if the stepparent loses primary physical custody of the child.


In some cases, a stepparent may be ordered to pay child support to the child’s biological parent until the divorce is final. There have also been instances when a stepparent obtains a divorce while the child’s second biological parent is paying child support to the first biological parent. This means that the stepparent does not have to pay child support to the first biological parent.


In most states, a divorce or family court judge decides who will have custody of the child based on the best interests of the child. Typically the judge will want to see that the child and the stepparent want to be together. The judge will also want to see that the stepparent has a history of providing significant financial support for the child. Even if a stepparent has not legally adopted a child or married the child’s biological parent, a judge may award a visitation rights or primary physical custody to the stepparent.


The stepparent must make a request and have acted as a parent to the stepchild for a significant period of time. It helps if the child wants the stepparent to have visitation or custody rights. If the child has normal mental abilities and is old enough to sound credible, they can request the court to award the stepparent visitation or custody rights.  


A stepparent who has not married the child’s biological parent or adopted the child may still be able to create rights to see the child. This can take place if the child’s biological parent and the stepparent form a contract about visitation and financial support. A contract requires an offer and an acceptance. A biological parent can offer a stepparent visitation time in exchange for financial support.


Consult an experienced attorney if you want to enter into such a written or oral contract. Depending on your state, you may want to avoid this type of arrangement. Such a contract could be confusing to a judge. This is because the contract presents a family-court type situation, but the stepparent does not meet the legal definition of “family.”

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