As a step-parent who is getting divorced or separating, you may feel confused over what rights you will have in relation to your step-children especially if you have spent many years living as a family and have grown to love them as your own. You know how important your bond is and may be worried that your former spouse may try to damage this relationship. It can be an anxious time, but we can help you understand what rights you have and what options are available to you.
In legal terms, to be a step-parent you must have married or entered a civil partnership with one of the child’s biological parents. If you did not marry the biological parent, but lived together with them, then your rights will be slightly different and it is important that you speak to a family law solicitor to discuss your options.
To help you understand your options as a step-parent, Angela Taylor family law expert at Malcolm C Foy & Co. Solicitors looks at some questions you may be asking.
Do I have the right to see my step-child?
You do not have an automatic right to see your step-child. That does not mean that you will not be able to obtain that right.
‘Initially, you should try and reach an agreement with your former spouse. Using a family mediator or collaborative lawyer can be helpful to structure the negotiations and work out details of the arrangements. It is important to try and encourage them to focus on what is best for the welfare of the child. If you played an important part in the child’s life it could be detrimental to their wellbeing if that relationship is not maintained.’ Says Angela.
However, if it has not been possible to reach an agreement with your former spouse, and if you have attempted to mediate without success, then you may want to apply to court for a child arrangements order.
A child arrangements order will outline the living and contact arrangements for a child. The child’s welfare will be the paramount consideration for the judge when making any order. It is vital that your case is well presented and the judge is made aware of the full impact it would have on your step-child if you could not continue your relationship. For example, you may have a biological child that has lived with you and your ex-spouse or has formed a bond with your step-child. That step-sibling relationship would be an important factor to highlight to the court.
Do I have the right for my step-child to live with me?
In some cases, you may be able to obtain rights for your step-child to live with you especially if you are concerned about their welfare or safety. Child arrangements orders can state that a child is to live with their step-parent and only visit their biological parent, however orders of this nature are not common. Angela explains ‘The court must do what is best for the welfare of the child, and in some circumstances that will mean living with a step-parent rather than a biological parent. This occurs most often when a biological parent is unfit to care for a child, for example, because of alcohol or drug misuse.’ In some circumstances, it may even be appropriate to consider applying for adoption of your step-child.
A shared living arrangement is an alternative that may be best for your step-child. This is where the court decides that neither you or your former spouse will be the ‘primary’ carer and the child will spend time living with you both. This may occur if, for instance, your ex-spouse moves town to be with a new partner and your step-child is reluctant to move from their school and circle of friends. In those circumstances the best way forward might be for your step-child to live with you during the school week and spend weekends with their parent.
If you have a child arrangements order stipulating your step-child lives with you then you will also be given parental responsibility. Parental responsibility gives the holder the rights to make decisions over a child’s welfare, including schooling and medical treatment.
Will anyone listen to what my step-child wants?
Your step-child may have expressed very clear views on what they want to happen following divorce, and you may be worried that their voice will not be heard. Part of the court’s considerations when making any child arrangements order is to have regard to the wishes and feelings of the child. The court can direct that your step-child meets with a Children and Family Court Advisory and Support Service (Cafcass) officer, who will then be able to report the child’s wishes and feelings to the court regarding where they live and who they visit. The older the child is, generally speaking, the more weight the court will put on their views.
What about child maintenance?
The government’s Child Maintenance Service cannot enforce a step-parent to pay child maintenance. However, as part of the financial arrangements order after divorce or civil partnership dissolution, the court can decide that you are required to pay monthly maintenance for your step-child.
One final thought to protect your step-child’s future is to consider making a will. Unlike biological children, a step-child is not entitled automatically to any inheritance from you unless you specify this in your will. However, if they were treated by you as a ‘child of the family’ during your lifetime and you fail to make adequate provision for them after your death, they could potentially make a claim against your estate.
For further information, please contact Angela Taylor in the family law team on 01302 340005. Malcolm C Foy & Co. has offices in Doncaster and Rotherham, South Yorkshire.
Dated 21 February 2019