Legal Guardianship Defined
A legal guardian is a person who has been appointed by a court or granted the authority by law to take care of a child when his or her parents can no longer fulfill that role. Legal guardianship, therefore, is a legal concept concerned with the care and protection of a child’s well-being when the birth parents are unable to do so.
Black’s Law Dictionary defines legal guardianship as "the relation created by law between a person and a minor or incompetent who is placed under his care, with the right to the exercise of parental rights and the responsibility of providing for the child’s nurture, care, education, and property." Legal guardianship, in a sense, creates a parental relationship between the guardian and the child.
As legal guardian, an individual has custody of the minor child and has parental control over the child and the power and duty to make decisions regarding the child’s upbringing. The legal guardian may be entitled to all of the powers, rights and duties associated with parenthood, except the right to consent to adoption of the child.
Obligations and responsibilities associated with legal guardianship largely coincide with those held by parenthood. A legal guardian has a duty to provide a child with a proper education , as well as to safeguard the child’s rights. A legal guardian, just like a parent, has a fundamental duty to nurture the child and provide for the minor’s food, clothing, shelter, health care and safety. A legal guardian is empowered to act in the best interest of the child and make all decisions regarding his or her upbringing. Legal guardians also have the right to consent to medical and psychological treatment of the child.
Legal guardianship, however, extends beyond the guardianship of a child’s physical well-being. Legal guardianship gives the guardian the right to control legal, religious, and moral upbringing of the child. Legal guardians have the right to educate the child – either directly of through their authority over the child’s placement within an educational setting. A guardian also has the authority to make decisions regarding the religious upbringing of the child, including but not limited to, choosing the denomination in which a child will be educated. As a legal guardian, you will be able to instruct the child on matters of moral and ethical import.
The Role of a Stepparent as a Guardian of a Child
The role of a stepparent can vary widely from situation to situation. In general, however, stepparents help to fulfill the parental roles of emotional support and financial responsibility in the blended family. They may even take on the parental role in all but name, depending on how involved they are with the family and at what point in the process they entered the equation. For example, it’s common to find stepparents who have taken on the role of a parent from an early age. In these situations, stepparents are often termed "bonus parents." These individuals are held in high esteem among the children they raise. In these cases, their parental role is no different from that of the biological parents, especially in cases where the stepparent takes on full custody of the child in the event of the biological parent’s passing. Stepparents do not take on the legal rights of the biological parents in the majority of states in the U.S., although this can depend on the circumstances surrounding the situation. For example, if the child has been adopted by the stepparent, they may be considered a legal guardian. Some states allow biological parents to include stepparents in their wills as a child’s legal surrogate. In those cases, however, clear guidelines must be laid out, including who holds parental rights in the event of an emergency or what to do regarding the education, travel or religious upbringing of the child. Although a stepparent’s role is defined as not having legal parental rights over the child, they do exert a very strong influence over the child’s life. Much of this result comes from the fact that children are teaching that division of parental roles exists. The stepparent is often the authority figure while the biological parent is the emotional support person. Many children grow to view their stepparents as the actual mother or father figure, both because of their heightened presence in their day-to-day lives. This inherently blurs the line between stepparent and parental figure in the eyes of the child.
Is a Stepparent Automatically a Legal Guardian of a Child?
Even if you’ve married a child’s biological parent, you are not automatically considered that child’s legal Guardian. A stepparent must petition to be named the child’s legal Guardian. All states and territories in the U.S. have different laws governing who can be appointed a legal Guardian to a particular child. Even those that have provisions allowing for step-parent Guardianship do not always include this option. Below is a summary of the laws in all 50 states and the District of Columbia.
Alabama law provides that if a stepparent married the child’s biological parent when the child was a minor, a motion can be filed to establish Guardianship which will have the same power as custody.
Alaska law states that a de facto custodian must file a petition to obtain legal Guardianship, but that a stepparent can be named as a de facto custodian.
Arizona – 5. Every reasonable effort shall be made by the moving party to give actual notice of the hearing prior to the hearing on the petition. A. "De facto custodian" means a person who is a caretaker for a child and: 1. Is not the biological parent, grandparent or legal Guardian of the child; 2. Has been a caretaker for the child who has resided with the child for at least six (6) months immediately prior to the filing of a petition; 3. Provides for the material needs of the child; and 4. Undertakes the responsibilities of a parent without becoming a parent under color of law.
Arkansas law simply says that in the event that a minor does not have a living parent or is abandoned by the living parent, that then the Court has the authority to grant any person with legal status to act as the child’s Guardian.
California law states that there must be a petition filed to establish Guardianship for a child. A stepparent may file for Guardianship and include a statement in the petition that states the reasons the biological parent did not file if required to do so.
Colorado requires that a stepparent file a petition requesting Guardianship. In addition, the biological parent must have failed to act as natural parent.
Connecticut law allows for a stepparent to petition the Court for Guardianship.
Delaware law allows that as long as the stepparent married the biological parent and a showing is made that it is in the child’s best interest that Guardianship be granted, then the Court can appoint the stepparent as Guardian.
District of Columbia law allows for a stepparent to petition the court for guardianship of the child.
Florida law allows that as long as the stepparent is married to the biological parent then the Court may grant Guardianship to the stepparent provided that establishing Guardianship is in the child’s best interest.
Georgia law permits a stepparent to petition the Court for Guardianship of the child.
Hawaii law states that the step-parent must file an action to establish Guardianship of the child.
Idaho law provides that as long as the stepparent is married to the biological parent the Court may grant Guardianship to the stepparent provided that establishing Guardianship is in the child’s best interest.
Illinois law provides that the stepparent may file a petition to become the Guardian of the child if no other parent has custody of the child.
Indiana law states that if the Guardian has just died then a step-parent may petition the Court for Guardianship.
Iowa law states that the Court may grant Guardianship of the child to the step parent provided that establishing Guardianship is in the child’s best interest.
Kansas law provides that as long as the stepparent is married to the biological parent of the child then the Court may grant the step-parent Guardianship over the child.
Kentucky law provides that if a parent acquires a child by marriage then that parent also acquires the right to become the child’s Guardian provided that establishing Guardianship is in the child’s best interest.
Louisiana law provides that as long as the step-parent is married to the biological parent of the child and the child’s needs are being met, then the Court may grant Guardianship to the step-parent.
Maine law will grant step-parent a petition of guardianship provided that the biological parent of the child did not object to the appointment of the stepparent.
Maryland will grant step-parent a petition of guardianship if the biological parent did not file for guardianship of the child.
Massachusetts will grant step-parent a petition of guardianship if the biological parent did not file for guardianship of the child.
Michigan law states that if the biological parent is married to the step-parent then the step-parent has equal guardian rights.
Minnesota law states that as long as the step-parent is married to the biological parent of the child then the Court may grant the step-parent Guardianship of the child provided that establishing Guardianship is in the child’s best interest.
Mississippi law will grant step-parent a petition of guardianship provided that the biological parent did not file for guardianship of the child.
Missouri law states that as long as the stepparent is regularly involved with the child and the child’s needs are being met, then the Court may grant Guardianship to the step-parent.
Nebraska law states that as long as the step-parent is married to the biological parent then the Court may grant the step-parent Guardianship over the child.
Nevada law states that as long as the step-parent is regularly involved with the child and the child’s needs are being met, then the Court may grant Guardianship over the child to the step-parent.
New Hampshire law states that if the biological parent dies then the step- parent will be the one awarded the Guardianship of the child.
New Jersey law states that as long as the step-parent is regularly involved with the child and the child’s needs are being met, then the Court may grant Guardianship over the child to the step-parent.
New Mexico law states that if the biological parent is married to the step-parent then the step-parent has equal guardian rights.
New York law states that if one of the child’s biological parents regularly cares for the child and has met the basic needs of the child, the Court may grant Guardianship over the child to the stepparent.
North Carolina law states that if the stepparent acquired the child by marriage and is caring for the child then the Court may grant guardianship over the child to the stepparent.
North Dakota law states that as long as the step-parent is regularly involved with the child and the child’s needs are being met, then the Court may grant Guardianship over the child to the step-parent.
Ohio law states that if the stepparent acquired the child by marriage then the stepparent also acquired the right of guardianship over the child.
Oklahoma law states that as long as the step-parent is regularly involved with the child and the child’s needs are being met, then the Court may grant Guardianship over the child to the stepparent.
Pennsylvania law will grant step-parent a petition of guardianship if the biological parent did not file for guardianship of the child.
Rhode Island law states that if the biological parent dies then the step-parent will be the one awarded the Guardianship of the child.
South Carolina law states that if the biological parent is married to the step-parent then the step-parent has equal guardian rights.
South Dakota law states that if the biological parent is married to the step-parent then the step-parent has equal guardian rights.
Tennessee law states that if the biological parent is married to the step-parent then the step-parent has equal guardian rights.
Texas law states that as long as the step-parent is regularly involved with the child and the child’s needs are being met, then the Court may grant Guardianship over the child to the step-parent.
Utah law states that if the biological parent is married to the step-parent then the step-parent has equal guardian rights.
Vermont law states that as long as the step-parent is regularly involved with the child and the child’s needs are being met, then the Court may grant Guardianship over the child to the step-parent.
Virginia law provides that if the biological parent is regularly involved with the child and has met the basic needs the child, the Court may grant Guardianship over the child to the step-parent.
Washington law states that if the biological parent is married to the step-parent and regularly involved with the child then the step-parent has equal guardian rights.
West Virginia law will grant step-parent a petition of guardianship if the biological parent did not file for guardianship of the child.
Wisconsin law will grant step-parent a petition of guardianship if the biological parent did not file for guardianship of the child.
Wyoming law will grant step-parent a petition of guardianship if the biological parent did not file for guardianship of the child.
How Can a Stepparent be Granted Legal Guardianship?
Stepparents who are seeking legal guardianship over their stepchildren must go through many similar legal processes as biological parents who are pursuing guardianship. In general, the stepparent must file a petition with the court to become the child’s legal caregiver. In order for the petition to be granted, the biological parent may also have to provide their consent.
It is important to remember that even if the biological parent agrees to relinquish their custody, the stepparent still needs to get legal guardianship from the courts. There are many reasons for this, primarily because a biological parent cannot relinquish their parental rights and responsibilities without getting approval from the courts. With guardianship, the courts agree that the biological parent will no longer control his or her parental rights, but will still retain those rights in the future should it be deemed appropriate.
For the stepparent, the process of obtaining legal guardianship involves petitioning the local courts to grant it. The petition should include the following information:
• The stepchild’s basic information — name, age, date of birth and so on
• Information regarding any other factors that may be important, such as the child’s health or special needs
• Details on why the other parent is unable to have physical custody of the child, as well as what the child has been experiencing in recent months, such as distress or other negative factors
• The manner in which the stepparent plans to care for the child, as well as the duration of the arrangement
The stepparent should then file the petition with the clerk for the Superior Court in his or her jurisdiction. Once the petition is on file, the clerk will provide the stepmother or stepfather with a hearing date that they will schedule with the court. When the paperwork is filed, the local courts should have jurisdiction over all matters involving a child under the age of 18 and of this duration. If your status has changed and a new state now has jurisdiction, you may have to seek the guardianship in that state.
If you are seeking legal guardianship of your stepchildren, consult with an experienced family law attorney to help guide you through the process.
The Benefits of Being a Legal Guardian for Stepparents
Should you choose to pursue legal guardianship of a child, there are lots of potential benefits as well. The most obvious is the legal authority to make significant decisions on behalf of the child. For example, a legal guardian can make decisions about school-related issues, including enrollment and IEP issues for learning disabilities and other issues. (If your spouse is the biological parent of the child, the legal guardian likely will work with the biological parent on these matters). If parents have been divorced or if they share joint physical custody, it may not be clear who will make education decisions. A legal guardian also will have legal authority to make medical decisions for the child, including the authority to seek medical care and treatment for the child. For a stepparent, this is particularly important because otherwise that stepparent currently may not have full legal authority to make those decisions in an emergency. In cases where one parent denies access by the other parent to the children, the legal guardian can provide access to that parent. Stepparents may desire legal guardianship of the child they have been raising because they want full and complete rights to make important decisions on behalf of the child without waiting for approval by the biological parent who may have been estranged from the child. In some cases, when a spouse remarries after the end of a prior marriage and the child is living with that spouse, the stepparent may want legal guardianship of the child so the stepparent can make important decisions on behalf of the child.
Obstacles and Things to Think About
When it comes to acquiring the title of a child’s legal guardian, a stepparent can face several challenges. Perhaps the most substantial consideration is the executor of the estate of your spouse, or the biological parent of the child. If your spouse has passed on, this person may be one and the same, but in the event they are not, you’ll have to make your case against their judgment when it comes to the future upbringing of the child in question. A legal representative of the biological parent has the potential to contest any legal guardianship claim that may run contrary to their wishes.
Potential financial concerns also await those looking to obtain legal guardianship status over their partner’s or partner-to-be’s children . Legal guardians can be held responsible for the safety, upbringing and well being of their step-children, which in turn can lead to a large outflow of money into the custody of another, and then potentially back out again should the stepparent be ill-prepared to care for the child. This can lead to issues in regards to steady employment and consistent income, as well as concerns for the child’s commitment to their new home.
Finally, there’s the most important factor in all cases of legal guardianship to consider: the best interests of the children involved. It’s essential that a stepparent be able to provide a safe and healthy environment for their children or step-children to live in, not only for legal reasons, but so that the child does not see them as a problem in their lives. It’s crucial that a stepparent wish to adopt the child into their lives as a member of their family, not as an outsider.
Common Myths That Surround Stepparenting and Legal Guardianship
Stepparents are often led to believe that once they marry the child’s biological parent, they have legal rights concerning that child and can act as a guardian. In reality, this is not the case; stepparents have no legal relationship to the stepchild as a result of the marriage to their spouse. Even when a stepparent adopts the stepchild, they have no legal rights regarding the child unless they file for guardianship. Unless a court grants a stepparent guardianship of a stepchild, they have no right to information about the child or the right to make decisions concerning the child, such as legal, medical, educational or other decisions.
Myth: As soon as a married couple has a child together, the husband becomes a legal guardian of the child, and his current wife (the child’s mother) also shares legal guardianship of that child.
Fact: This is not necessarily true. As with most guardianship questions, there are some exceptions. If a child already has a stepparent who has been granted guardianship or adopted by the child’s other biological parent, having an additional stepfather just means that both fathers are guardians of the child.
Myth: Stepparents have the same rights as biological parents. A stepparent cannot apply for guardianship without the birth parent’s consent.
Fact: Stepparents can petition the court for guardianship of their stepchild if they can prove that it is in the best interest of the child. The court can then appoint both biological parents as well as the stepparent as co-guardians. Ultimately, only the court can decide if a stepparent should be granted guardianship of a stepchild.
Myth: When the biological parent dies, the stepparent automatically receives guardianship of the child.
Fact: Unfortunately, this is often the case. It is the default assumption of many people that stepparents will end up with guardianship of a child after the child’s other biological parent dies or becomes incapacitated. To avoid any legal issues with guardianship, however, this misconception must be cleared up at the very beginning of the relationship, and a legal will must be created that makes it clear what the biological parents desire and how those desires will be carried out if one of the biological parents dies. Parents cannot pass on legal guardianship of their children to their stepparents unless explicitly specified in their will.
Myth: Legal guardianship can be revoked by the stepparent or guardian without any legal action.
Fact: Revocation of guardianship must be pursued through the judicial system. A petition must be filed by the biological parent or the stepparent stating that revocation of guardianship is in the child’s best interest and requesting that the court terminate the guardianship. Guardianship cannot simply be terminated by a stepparent or guardian.
Legal Alternatives to Guardianship If You Are a Stepparent
Sometimes the wishes of a person with a stepparent-spouse are not carried out because the existing plan fails to provide the stepparent any control in the absence of the natural parent-spouse. This is unfortunate, especially as a named guardian will often challenge any non-parent without regard to the welfare of the child. In fact, such stewardships are often lost before they even start because courts view with suspicion any arrangement where significant time has been spent caring for the child. The way around this is to create new legal arrangements that provide control to the stepparent (without regard to the natural parent) and to provide for the natural parent’s wishes. So-called "power of attorney documents" and "temporary guardianship agreements" are often useful in shaping this process. Power of Attorney Documents may be limited to certain decision-making areas or limited by scope (a healthcare power of attorney may be limited to health care decisions; a financial power of attorney may be limited in scope such that only designated bank accounts are available for control by the authorized individual). The benefit of a power of attorney is vast and inherent. For instance, a healthcare power of attorney specifically allows the individual named to direct health care decisions as if the declarant were competent to make those decisions on his own. When combined with living wills, which are directions to provide or withhold treatment, a power of attorney can be a useful tool in legal and financial planning. For the purposes of these articles, the power of attorney document is most useful in providing the stepparent with control in a medical or financial emergency. Often the parent-spouse is no longer able to participate in some decision-making (due to hospitalization, injury, etc), and the stepparent can step in to make decisions on behalf of the natural parent. However, these documents do not specifically give the stepparent legal custody. At best, they simply recognize the possibility that the stepparent may need to make decisions in times of emergency. Guardianship agreements are another tool frequently overlooked. These agreements specifically name another individual as a guardian of the child in the event a parents should predecease his obligations to the child. These agreements are easily drafted and signed. They provide a strong statement to a court if contested, as they existed before the controversy arose and speak to the intent of the decedent. While guardianship agreements are not enforceable in normal circumstances, they are clearly useful if the child is ever in danger of being removed from the custodial parent. They may also be utilized to trigger statutory rights when a parent wishes to relinquish custody to another party. If the surviving spouse does not have a child support order for the protection of the children, many states now provide for the widow/widower/spouse to receive financial benefits from the estate of the deceased parent that are earmarked for the child’s support. In Pennsylvania this is done through a special "guardian of the minor child’s estate" (i.e., a guardian specifically named to manage the financial aspects of the estate for the children). In this case, the estate generally pays a monthly allowance to the parent spouse and a separate amount directly to the guardian for the benefit of the child. These arrangements can be very helpful, especially since the funds immediately go to the physical custodian of the child. If later challenged the judge quickly cuts off all payments to that party, but until challenged money is being delivered to the surviving natural parent who acts as a steward of the child’s assets in the absence of a contested motion to terminate such payments. Regardless of the situation, now is always a good time to consider legal alternatives to guardianship. Most consulting attorneys will prepare these documents or help you navigate the process in obtaining same. The key is to continue to provide for the children, while avoiding the legal traps that guardianship can create.
Consult With a Lawyer if You Are a Stepparent
When considering legal guardianship for a stepchild, consultation with an experienced family law attorney is essential. The issues surrounding guardianship, whether long-term or short-term, are complex and require a clear understanding of the law based on the specific facts of the situation. A competent family law attorney can guide a stepparent through the difficulties generally associated with all guardianship situations, including: Stepparents seeking legal guardianship should look for a family law attorney who specializes in guardianship issues, has experience with the stepparent/stepchild dynamics, and who has a record of successfully representing achieving good outcomes for stepparents and families who desire to seek legal guardianship . A good attorney will be familiar with the local rules of the court and how those rules affect the case. During initial consultations, the lawyer and his or her staff should explain all required forms, the process and timeline for the case, and how much it will cost. The attorney should be clear about the steps necessary to accomplish the legal guardianship. While no legal representation can ever be guaranteed, thoroughly researching and consulting with family law attorneys who are experienced in stepparent legal guardianship issues is highly recommended. A thorough understanding of the laws that may affect a prospective legal guardianship, combined with guidance from a competent family law attorney, goes a long way toward helping stepparents achieve their goal of legal guardianship for their stepchildren.