When Your Stepchildren Would Rather Live With You: How To Handle This Situation During A Divorce

Law Blog

When you marry and combine families and find yourself in a new role as a step-parent, it is a fairly common thing. What is not so common is ending a marriage and finding that your stepchildren would rather live with you than with their biological parent. If these children cannot go live with another parent because that parent is deceased or in absentia, then you have a very unique and difficult situation on your hands. Here is how this situation can be handled as you go through a divorce.

Parental Rights Vs. Stepparent Rights

It is important to remember that as long as your stepchildren have a natural parent alive, that parent's rights to the children take precedence over your rights. Your soon-to-be-ex has every right to retain custody of his or her natural children from another relationship or marriage. That said, it is not impossible to gain custody of your stepchildren, just improbable. There are a few rare exceptions. 

Exceptions to the Rule

Depending on where you live, there are exceptions to these parental rights in a divorce. (You will have to check with your lawyer to see if any of these apply.) You may be able to sue for custody and guardianship of your stepchildren if:

  • Their natural parent was physically or sexually abusive and you have documentation to prove it.
  • Their natural parent is dying of cancer or some other disease and it has been determined that there is no cure or remission.
  • Your stepchildren consider you mom or dad because you are the only mom or dad they have ever known and your families blended when they were really little (i.e., infants or toddlers).
  • Your soon-to-be-ex signs away all parental rights to the children because he or she will be in prison for several years (it does happen) and his or her family is not interested in guardianship.

There may be some other special rules or exceptions that would allow you to claim your stepchildren as your own and file for guardianship during the divorce. However, it may be a very long and tedious process since you would have to first prove that your stepchildren would be better off with you. This means your lawyer, a guardian ad litem for the children and possibly even a social worker or caseworker would be involved before you were awarded custody of the children. In the meantime your divorce would more than likely be finalized, and you would need your divorce attorney, such as http://www.glfamilylaw.com throughout all of these legal processes.


27 May 2016