Stepparents' rights if the birth parent dies - Mothering Forums
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#1 of 42 Old 09-06-2008, 02:18 PM - Thread Starter
 
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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?

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#2 of 42 Old 09-06-2008, 02:39 PM
 
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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 ..
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#3 of 42 Old 09-06-2008, 03:20 PM
 
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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.

I pray for the day Family Court recognizes that CHILDREN have rights, parents only have PRIVILEGES.  Only then, will I know my child is safe.
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#4 of 42 Old 09-06-2008, 03:37 PM
 
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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 ..
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#5 of 42 Old 09-06-2008, 03:39 PM
 
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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.

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#6 of 42 Old 09-06-2008, 04:00 PM
 
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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?

I pray for the day Family Court recognizes that CHILDREN have rights, parents only have PRIVILEGES.  Only then, will I know my child is safe.
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#7 of 42 Old 09-06-2008, 04:06 PM
 
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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 .
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#8 of 42 Old 09-06-2008, 05:45 PM
 
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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.

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#9 of 42 Old 09-06-2008, 08:06 PM
 
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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.

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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.
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#10 of 42 Old 09-06-2008, 08:33 PM
 
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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.

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#11 of 42 Old 09-06-2008, 09:08 PM
 
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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.

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#12 of 42 Old 09-06-2008, 09:11 PM
 
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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.

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#13 of 42 Old 09-06-2008, 10:14 PM
 
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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.
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#14 of 42 Old 09-06-2008, 10:31 PM
 
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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. :

I pray for the day Family Court recognizes that CHILDREN have rights, parents only have PRIVILEGES.  Only then, will I know my child is safe.
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#15 of 42 Old 09-06-2008, 10:42 PM
 
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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 ..
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#16 of 42 Old 09-06-2008, 11:13 PM
 
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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.

I pray for the day Family Court recognizes that CHILDREN have rights, parents only have PRIVILEGES.  Only then, will I know my child is safe.
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#17 of 42 Old 09-06-2008, 11:37 PM
 
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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.
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#18 of 42 Old 09-07-2008, 12:54 AM
 
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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.

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#19 of 42 Old 09-07-2008, 01:03 AM
 
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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.

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#20 of 42 Old 09-07-2008, 03:15 AM
 
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wow im glad i found this post!

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#21 of 42 Old 09-07-2008, 09:03 PM
 
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I would hope that my dh's ex would allow me to see the boys and interact with them. She's pretty cool for the most part, so I'm guessing she would be okay with it, especially since dh and I have a child together, and the boys love their sister.
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#22 of 42 Old 02-27-2009, 04:42 PM
 
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My ex-husband is dying of cancer. I am remarried and he is also. He wants to draw up legal documents that lets his wife take over his part of the custody. I hear that if I sign this that if I die and he has died that she gets custody of my child. Is this true? I am so confused and have retained and attorney to go over all this but has anyone been throuig this or know what I should do? I have always let him and his family have her whenever they want her and would never stop that. Help.
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#23 of 42 Old 02-27-2009, 05:53 PM
 
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How involved is she in his life? Doe they have additional children? Do you feel comfortable with this? Are you the CP or the NCP?

A family law attorney is a great place to start.
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#24 of 42 Old 02-27-2009, 06:23 PM
 
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Wow, sounds like I really need to contact an attorney about all of this. We will be working on our will soon (new baby) and if I die my boys will go to their father, but if my husband dies, his son MUST stay with me. I will fight that one to the end, but it would be much easier to know what to do ahead of time. (dh being in the military, and while it is unlikely, it is still probably something I have to consider more then the average person). Anyway, we are establishing me as the primary care giver medically with my step son, even over his father, but of course I am not his bio mom so I worry. My dh's ex has said many many times she wouldn't take him from me, and would let me keep him if something happened to DH, I just don't want to take her word for it. I also don't want the grandparents to get custody if for some reason mom didn't take him.
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#25 of 42 Old 02-28-2009, 11:53 AM
 
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We have discussed this with Mona's mother and stepdad, actually. If DH was to pass away, then we have it worked out so that Mona would come and stay with me for one weekend a month if I am within 300 miles, and if I am out of that range, we would work something else out. That is mainly because Mona and Colton ARE blood siblings, and it is important to all of us that Mona keep her sibling relationships. It is the same if Mona's mother were to pass away, we would get custody of her, but would still keep some visitation with her stepdad or older siblings (2 of which are adults). Now, there is probably no legal standing for the arrangement, but we and Mona's mom and stepdad get along well and know that Mona needs all of us, PARTICULARLY if there was a devastating loss of one of her parents.
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#26 of 42 Old 02-28-2009, 08:48 PM
 
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My understanding is that regardless of what you have in your will, what people have agreed to, etc... that when it comes down to it, the custody of your children are at the discretion of the family court. Different states have different guidelines for the judges to follow, but ultimately the court is charged with looking out for your child's best interest. In general the presumption would be that the best interest of the child is with his/her biological parent.

Even when you are not talking about a blended family, if something were to happen to both parents, your wishes are merely a suggestion to the family court as to what you want to happen. In general, the court will assume that the parent knows what would be in the best interest of his/her children. However, if I said I wanted them to live with my parents, but my in-laws fought hard against it and made a convincing case, the judge might overrule my wishes in favor of what he/she deems to be in their best interest.

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#27 of 42 Old 03-01-2009, 03:12 AM
 
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My ex-husband is dying of cancer. I am remarried and he is also. He wants to draw up legal documents that lets his wife take over his part of the custody. I hear that if I sign this that if I die and he has died that she gets custody of my child. Is this true? I am so confused and have retained and attorney to go over all this but has anyone been throuig this or know what I should do? I have always let him and his family have her whenever they want her and would never stop that. Help.
I would not stress about this ,,,
I would not sign anything .. I would not agree to anything..
I would speak to an attorney .

If your ex is to pass then full custody should go to you and your husband would then have the legal right to adopt the child and become "father status"
your ex's wife can request visitation through you our through the courts and upon your approval or the approval of the courts she could be granted a limited visitation schedule ,

More then likely she will NOT be granted the same visitation or custody as your ex has .

His part of the custody is not like a "trust fund" or an "inheritance" that can be "passed on" or "willed" to someone else.

More than likely this request if he does in fact submit it to the courts with me thrown out by a judge ..

Does your ex and new wife have any children together ?
because she could get visitation on the step-siblings behalf if that is the case .
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#28 of 42 Old 03-01-2009, 11:15 AM
 
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I have sole custody of ods and like boobybunny my life insurance policy would cover court costs in the event that dh had to fight xh for custody, although I don't really see that being an issue given xh's lack of interest at this point. I also I know my parents and the paternal grandparent are fully supportive of dh having full custody of ods in the event of something happening to me. I would be very surprized that a judge would rule in favour of xh, who has a court proven history of alcoholism and doesn't maintain his given visitation as it is.

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#29 of 42 Old 03-01-2009, 11:36 AM
 
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My ex-husband is dying of cancer. I am remarried and he is also. He wants to draw up legal documents that lets his wife take over his part of the custody. I hear that if I sign this that if I die and he has died that she gets custody of my child. Is this true? I am so confused and have retained and attorney to go over all this but has anyone been throuig this or know what I should do? I have always let him and his family have her whenever they want her and would never stop that. Help.

* First of all, I'm sorry for your ex. I can only imagine the strain on all involved.
* Second of all, I can't imagine any judge taking away YOUR biological children and signing them off to your ex's wife, unless that's what you want.
* And lastly, I completely understand his point of view, he simply wants his ex to be able to see the child(ren) who have known her as stepmom, and to maintain that relationship. If dsd was younger, and we were in the same situation, I would hope for a permission to see dsd, and the easiest way to grant it is to spell it out in a legal document.

Unless you have a reason to mistrust your ex or his wife, this seems like a very understandable request, wouldn't you request similar document if the roles were reversed for your husband? Wouldn't he want to stay involved in your child(ren)'s life if something were to happen to you?

Just my take on things.

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#30 of 42 Old 03-01-2009, 11:44 AM
 
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More then likely she will NOT be granted the same visitation or custody as your ex has .
Of course I don't know how good the relationship between stepmom and the kids is, but while I'm sure this is true legally, I find this very sad.

All the time, patience, love amounts to not even enough to grant me maintain relationship with a stepchild that I love. "A phone call" should suffice? She couldn't love her stepmother, could she? And miss her. It can't be possibly in her best interest to have a healthy relationship with an adult who was such an integral part of her and her father's life, should anything happen... *sigh*

New endeavor coming soon...
Raising Alice in Wonderland (DSD, 17), and in love with a Superman
Oriole is offline  
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