Am I a Legal Guardian to My Stepchild?
Even if you care for your stepchild, you may not be considered their legal guardian.
Legal guardianship of a minor
In the legal world, a guardian refers to someone who cares for and provides for a child without having one of the child’s biological parents terminate their parental rights. Even though a stepparent seems to fit the definition of a guardian for their spouse’s children, they are not legally considered guardians of their stepchildren.
Unless a stepparent has established legal guardianship or files the correct paperwork to receive court-ordered guardianship, they cannot make decisions on their stepchild’s behalf regarding medical care, schooling, or other essential needs. All that responsibility and power lies with the child’s biological parents. Without legal guardianship, a stepparent has the same rights as a babysitter—they can choose and implement curfews, consequences, and chores in their home but cannot make choices on behalf of the stepchild.
This reality can be difficult for some stepparents to accept. Even if a stepparent is deeply involved in their stepchild’s day-to-day care and is emotionally attached, they may have no legal rights in the eyes of the court, especially depending on the state’s laws. This lack of legal rights can create significant issues whenever a stepparent feels compelled to act on behalf of their stepchild, especially if the stepchild’s biological parents cannot be reached.
Potential problems from not having guardianship
Depending on whether you have guardianship of your stepchild, you may not have the option to make decisions in certain situations. For example, if a stepchild is hurt and requires a quick medical decision for treatment, the stepparent has no legal authority to make that decision if they are not a legal guardian. The only exception is if a stepparent completes a consent form that the stepchild’s biological parent authorizes.
If the stepchild’s biological parent goes out of town for work or is in the military and deployed for a more extended period, the stepparent can’t make decisions on behalf of their stepchild while the biological parent is away. Even if it is as simple as signing a permission form for a field trip, a stepparent cannot provide legally valid input in place of the biological parent.
If a stepparent wants more rights to make decisions on behalf of their stepchild and has approval from their spouse, they can work to establish either temporary or permanent legal guardianship.
What’s the difference between guardianship and custody?
Although they seem similar at face value, guardianship and custody significantly differ in what decisions can be made and how long each lasts. While someone with legal custody of a child can make all decisions for that child, a guardian is typically limited to making everyday decisions that impact the child’s welfare and care. Additionally, custody orders are commonly seen as permanent, while guardianship is often temporarily arranged.
How to get legal guardianship of your stepchild
Legal guardianship is usually considered for stepparents and other figures in the following circumstances:
- Parent(s) are absent or deemed unfit to care for a child
- Parent(s) are imprisoned and cannot provide care
- Parent(s) lose or voluntarily terminate parental rights
- Parent(s) consent to the guardianship
Legal guardianship can be granted for a short time (a few weeks or months) or permanently until a minor child turns 18. A guardian is appointed by either a court of law or the biological parents. Guardianship does not affect the rights of a stepchild’s birth parents.
To establish guardianship of your stepchild, you start the process once your spouse files a petition for guardianship in your local family court. Once the petition is filed, the court will review the petition and may complete other tasks like:
- Investigate through an appointed guardian ad litem
- Conduct a background check on the stepparent
- Hold hearings
After the court completes its evaluation and approves the petition, it will issue an order establishing guardianship of your stepchild. Legal guardianship laws are different in every state, so you should contact a family law attorney or speak to the clerk of courts in your county court to learn more.
Some states also allow parents to delegate parental powers to a stepparent through a power of attorney. A power of attorney may give a non-parent the right to make decisions for a child for specific timeframes or activities. These rights include activities such as vacations or doctor’s appointments.
How to adopt your stepchild
If legal guardianship doesn’t sound like the best option for you, adoption is another way to establish the right to make decisions for your stepchild. Excluding any state-specific requirements, the process of adopting your stepchild involves the following:
- Filing the proper paperwork to adopt through the court
- Getting consent from both biological parents
- Getting consent from your stepchild
- Completing a background check
- Attending court hearings
Just like guardianship, adoption is affected by requirements and laws in your state and other factors. Having complete knowledge and understanding of the processes and requirements you must follow and meet is crucial. Working with a family law attorney helps you better understand state-specific procedures, required conditions, and other influences that affect your efforts to become a guardian or adoptive parent.