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Stepparents' rights if the birth parent dies

post #1 of 42
Thread Starter 
DH and I are doing wills soon. I don't know what to put in my will about DS, because I don't know what DH's rights are if I die. If XH and I both die, I want DH to get full custody of DS. If just I die, obviously DS will go to his dad, but I want to make sure DH gets to see him. Do most states accept in loco parentis as a reason to grant visitation? I was thinking of putting that DH should have visitation commisserate to the standard order of parenting time in the county in which he (or DS) lives. That would give him one evening a week and every other weekend, alternating holidays, etc. Do you think that would fly?
post #2 of 42
I hate thinking about this but I am the step parent and have talked to lawyers about this !!!
The step parent is considered a "legal stranger" to the child ..
!! THIS COMPLETELY SUCKS !!!

You can put your wishes or "suggestions" in your will but honestly nobody has to follow them .. It is up to your ex , the courts and your DH to work something out..

If you were to die your DH would have to prove to the courts that he has a strong bond with the child and it is in the child's best interest to continue a relationship with your DH, basically he has to fight for visitation..

If both parents die , your DH can petition the courts for custody again having to prove that he is the best parent for your child .
The courts usually look to an immediate family member (blood) to take over "parent" responsibilities..
If no one in the immediate family steps up then he's got a better shot and less of a fight on your DH hands ..

Putting something in the parenting plan now is a great idea but you ex has to agree to it ..
post #3 of 42
Subbing. My stepdaughter's Mother had sworn that, if somehow my Husband was no longer in the picture, my stepdaughter would never see me again and would be told it was because I didn't want to see her. I'm afraid that's exactly what would happen, especially if I had no legal rights towards my stepdaughter.
post #4 of 42
Quote:
Originally Posted by harleyhalfmoon View Post
Subbing. My stepdaughter's Mother had sworn that, if somehow my Husband was no longer in the picture, my stepdaughter would never see me again and would be told it was because I didn't want to see her. I'm afraid that's exactly what would happen, especially if I had no legal rights towards my stepdaughter.
OUCH that is just nasty , I am so sorry !!!

My lawyer told me to document my involvement with the children.
Show that the children thrive with me and that they are used to being around me..
The step-parent should at the least get a couple days a month ..

I guess it helps if you have children with the husband because it's easier to get visitation on the siblings behalf..

Step-parents rights are kind of like grandparents rights but kinda not ,,
each state is different ..
post #5 of 42
Both of the previous post are unfortunately true, If you have children together that would remain with DH he would be more likely to get visitation on the basis of having the child retain a relationship with his kids. We just finished our wills.
post #6 of 42
What is you couldn't have children with your Husband (blood sibling to stepchild), but you had a child from a previous relationship (Husband's stepchild) and they had been brought up as siblings for, say, the last 5 years. Wouldn't count because they weren't "real" siblings?
post #7 of 42
Quote:
Originally Posted by harleyhalfmoon View Post
What is you couldn't have children with your Husband (blood sibling to stepchild), but you had a child from a previous relationship (Husband's stepchild) and they had been brought up as siblings for, say, the last 5 years. Wouldn't count because they weren't "real" siblings?
The children are not blood so they are considered "legal strangers"
You'd have to provide proof that the children have bonded , best interest of both children to remain in contact , etc .
post #8 of 42
I was also under the impression that there is no such thing as step-parents rights, because for the most part, they don't have any. If your XH is a great guy and your all 3 want to go in and have your wills done together, this might be a better idea. If your wishes of who you want to be guardian for your children under all the different possible scenarios that you mentioned are to be followed, then all of your wills should state the same plan. Ultimately, a judge decides who becomes guardian, but w/o anyone contesting and if all of your wills want the same thing, it should be honored.
post #9 of 42
Luckily mandy, you are in OH (as I am) and Ohio is starting to recognize step-parents under the "intersted third party" visitation. There have even been cases of bio mom and step parent divorcing and step parent being able to get visitation.

Quote:
A stepparent who shows that they have voluntarily assumed the relationship of "parent" to a stepchild might also anticipate that some parental duties, such as support obligations, might also be imposed out of the establishment of in loco parentis status. However, because the establishment of in loco parentis status requires proof of intent to enter into such a parent-child relationship, merely allowing stepchildren to live in your home will not likely result in support obligations upon the conclusion of the marriage. In fact, courts have been much more hesitant to impose support obligations on stepparents than they have been in providing stepparents with visitation rights. Nonetheless, it is advisable for stepparents to keep in mind that the law often imposes parental obligations along with parental privileges. Stepparent Visitation in California, Kansas, Tennessee, Virginia, and Wisconsin all have statutes explicitly addressing stepparent visitation; Alaska, Connecticut, Hawaii, Louisiana, Maine, Minnesota, Ohio, and Washington have third party visitation statutes have been used as basis for allowing stepparent visitation. California has not passed any legislation providing for stepparent support in conjunction with stepparent visitation, but that could change at any time, and stepparents should be aware of this fact before asking the court for visitation rights.
The step parent would still have to go to court to prove that visitation is in the best interest but the above states have been moving forward in helping it happen. Having it in your will can only help things as it proves that your intent is for the relationship to continue.
post #10 of 42
Interesting topic. I have thought about this. DSD is old enough to decide for herself. I do wonder though, if something happened, if she'd want to stay here with me, or to go back to her mom's. I'd be fine with either or, provided we get to see each other, of course.
post #11 of 42
We've thought about this, too. I think that if my DH died, that SS and his mom would move out of state w/in 30 days. She tried to move out of state at the time of the divorce but the judge told her if she did that, SS would stay here with his dad, so she stayed. It's been 11 years since then, but she's never made any secret of the fact that she wants to leave. I don't know all the legal ramifications about any of this, but I hope that I'd get at least a little visitation, if for no other reason than to maintain SS and his little brother's relationship.

My ex-husband is infinitely more reasonable and I know that my big kids would spend at least one night a week here with DH and their little brothers.

Honestly, my bigger fear is that, if the worst happened and we ALL died, the kids would go to the guardians indicated in our ex's wills. Thank God that's exceedingly unlikely, because it's more or less unimaginable that our kids would go to our ex's siblings.
post #12 of 42
This is an interesting topic. We are getting ready to ammend our wills with the addition of another child. I never thought about adding DSD into the will specifically if something happened to DH. I have thought about the fact that I would fight for some visitation considering she has soon to be three half sisters here and I have been in her life since she was 2.5yo. We will have to ask our lawyer about it specifically for our state.
post #13 of 42
Quote:
Originally Posted by UptownZoo View Post
Honestly, my bigger fear is that, if the worst happened and we ALL died, the kids would go to the guardians indicated in our ex's wills. Thank God that's exceedingly unlikely, because it's more or less unimaginable that our kids would go to our ex's siblings.

Do you mean if all your child's parents/stepparents died? From what I remember from doing our wills, the last surviving person's will takes precedence, so if I died ten minutes before dh, his will overrides mine (in our case, because we leave everything to each other first, then the kids, so it would be deemed that he got everything from my estate, then it got divided per his instructions).

However, in our case it's moot, as they are exactly the same wills. I would assume it would be the same with custody.
post #14 of 42
Quote:
Originally Posted by azfiresmbm View Post
The children are not blood so they are considered "legal strangers"
You'd have to provide proof that the children have bonded , best interest of both children to remain in contact , etc .
That's horrible. Is it the same, even is my Hubby were to adopt my son (the plan, eventually.), my son and my stepdaughter would still be "legal strangers", because they aren't biologically related? Or if my Hubby and I adopted a child together? That's really messed up. :
post #15 of 42
Quote:
Originally Posted by harleyhalfmoon View Post
That's horrible. Is it the same, even is my Hubby were to adopt my son (the plan, eventually.), my son and my stepdaughter would still be "legal strangers", because they aren't biologically related? Or if my Hubby and I adopted a child together? That's really messed up. :
Adoption is a different story , when you adopt a child , for instance you DH adopting your son . Then your husband becomes the "legal father" and is NO LONGER a "legal stranger" ..

After adoption your DH would be put as the father on the birth certificate and would become "blood" in the courts eye, as well as siblings..

If you adopt a child your name is on the birth certificate as mother and your dh would be on the birth certificate as father. You are legally the parents of that CHILD

Your ex has given up all his paternal rights and cannot get them back, your ex would in turn have to fight for visitation ..
post #16 of 42
Quote:
Originally Posted by azfiresmbm View Post
Adoption is a different story , when you adopt a child , for instance you DH adopting your son . Then your husband becomes the "legal father" and is NO LONGER a "legal stranger" ..

After adoption your DH would be put as the father on the birth certificate and would become "blood" in the courts eye, as well as siblings..

If you adopt a child your name is on the birth certificate as mother and your dh would be on the birth certificate as father. You are legally the parents of that CHILD

Your ex has given up all his paternal rights and cannot get them back, your ex would in turn have to fight for visitation ..
Good to know. My Ex (son's Biological Father) has no problem with my Hubby abopting my son. It's good to know that when my Hubby adopts my son, my son will then be considered (at least legally- never in my stepdaughter's Mother's eyes ) my stepdaughter's brother.
post #17 of 42
If I were to die, my life insurance policy (nearly a million dollars) would be spent to "buy" the children from my former spouse. As in their lives would continue as normal as possible. My former spouse and my husband grew up in the same neighborhood, can and will work together to parent the kids. The parents are all still friends, and all have mutual friends. The older generation will come down on our side of this.

My husband, our family has been intact longer than my former spouse has ever lived with the children. We added another child. We have a Doc that is/was lifetime friends of both my former husband and I. We have my former husband's neighbor growing up and close with all involved (she is also the mother of my husband's best friend...since age 4) We have their school, they are in a language immersion program that would not be replicated in his school district. (the worst in the state)


My former spouse does not take all the visitation he was awarded. At times, I have to beg and plead for him to take the children. Our oldest is in the 6th grade, he has come to his school functions exactly three times. He has never come to our daughter's. (4th grade) He is the one that left us, and he is the one who has alienated his own children.


If it came down to a court battle, there is no doubt in my mind (or our attorney's mind) that we would win at least the school calender custody.

The easier way would be to tell my former spouse that he no longer has to pay child support... and can still be in the children's lives as if I were still alive. My husband, the children's every day daddy, the only daddy either child remembers living with, will have the assets to protect his children.
post #18 of 42
This scares me because I knew if anything were to happen to me that my ex would probably take DS1 away and he'd never see his brother (DS2) or my family again. We are not on good terms and he's a pretty selfish person. We are working on our wills now too and I'm not even sure what to do in regards to beneficiaries if DH and I die. I know if I left money to DS1 that ex would take it and blow it. I'm going to have to set up a trust and appoint a trustee.
post #19 of 42
In WI, stepparents have standing to pursue visitation in cases of divorce or death of the natural parent. Right now, as an unmarried "stepparent," I could try to prove I was a de facto parent and get visitation that way, but that's more uphill (from what I understand).

In practicality, if my partner were to die, I know his ex wouldn't cut me out of SD's life, but she wouldn't really go out of her way to ensure continued contact, KWIM? She'd probably move out of state (which would be her unfettered right, without another legal parent to object), and if I wanted to see her, I'd have to initiate it.
post #20 of 42
wow im glad i found this post!
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