Stepparent Custody Rights

Written by Jonathan Breeden

October 19, 2016

Studies have shown that approximately 40-50% of all marriages end in divorce, which is why it’s no surprise that many people get married more than once in their lifetimes. If you decide to get remarried and either you or your new spouse has primary custody of minor children, there is a possibility that you will consider having the nonbiological parent or stepparent legally adopt the children. Adopting your spouse’s children will make you a legal guardian and as such, you would have considerable interests in the child’s life that you did not have before as you would now be one of the child’s two parents. Furthermore, in the event that you and the child’s natural parent decide to get divorced, you will have the same legal rights as the biological parent as well as the same legal responsibility.

Adopting a Stepchild

Adopting your minor stepchild may help ensure you will have custody rights, should you and the child’s natural parent divorce. When you petition the court to adopt the child, you will need to prove that

  • Your spouse, as the natural parent, has both legal and physical custody of the child. Additionally, you will need to show that the child’s main residence has been with you and your spouse for at least the past 6 months;
  • If your spouse has passed away or is considered incompetent, you will need to prove that your spouse did have legal and physical custody and that the child resided primarily with you and your spouse for at least 6 months before your spouse passed away or was adjudicated mentally incompetent;
  • If neither scenario above applies, you will need to indicate in your petition why you are requesting to adopt the child, and the court will consider your request and all accompanying information.

You will need to get consent from the child’s other parent or legal guardian or file an action with the Courts to terminate the parental rights of the other parent. Additionally, you will need to have a written statements including certain affirmations like the following:

  • The custodial parent has granted permission for you to adopt the child, and
  • The adoption will not terminate the parental rights of the custodial parent.

When a child is adopted by his or her stepparent, the legal rights to the child that were held by the child’s noncustodial parent are extinguished. The non-custodial parent will recognize this arrangement by signing a written statement, including certain acknowledgments as outlined in the statute. The child loses the right to automatically receive an inheritance from the non-custodial parent’s estate. This termination also means that the child is no longer bound to visit the non-custodial parent because custody and support orders are dissolved; the non-custodial parent, however, is still obligated to pay any past-due child support, so he or she will need to pay the arrears due.

When the non-custodial parent relinquishes his or her parental rights, you gain those parental rights. As the legal adoptive parent, you will be as qualified as the child’s custodial parent in North Carolina family court for custody rights and child support, if you decide to petition for support. The court will, as always, pursue the custody situation that suits the best interest of the child, without bias, stating, “[b]etween the parents, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child.”

Do You Have to Adopt the Child To Gain Custody Rights?

North Carolina law does not specifically give custodial or visitation rights to nonparents who are not the adoptive parents of minor children. The statute simply says the court will award custody “to such person, agency, organization or institution as will best promote the interest and welfare of the child.” In order to be considered, you will need to submit your case determining why you should be awarded custody, and the court will examine all determining factors and make a decision that promotes the best interests of the child.

Additionally, the court says that any parent with custody rights may petition the court for child support, so neither party is automatically entitled to, or automatically ordered to pay, child support. If you want to explore your rights to child custody or support as a stepparent without legal parental rights, you may benefit from contacting a family law attorney who can go over your case and determine what steps, if any, you could take.

Contact a Skilled Custody Lawyer

It can be tricky to navigate the legal system when you’re trying to get custody rights as a stepparent, but it’s not impossible. If you want to remain in your stepchild’s life even after your relationship with his or her parent has ended, you should contact a skilled and experienced custody attorney to help you with your case.

Attorney Jonathan Breeden of Breeden Law Offices has over 20 years of experience with the local family courts; he can provide extensive knowledge on custody issues to help determine what will work best for your situation. Call (919) 661-4970 today.


Divorce In North Carolina: What You Need To Know

A book by Jonathan Breeden