Every family is different, and often the parent of a child marries another adult who wants to play a part in the life of the child. Where both biological parents continue to be interested in maintaining their parental rights, there are limits to a step-parent's legal right to assume a parental role for the child. However, in many instances, there are opportunities for an adult to have their relationship with a step-child recognized by the court.
Under Virginia law, biological parents are presumed to have joint physical and legal custody over a child, and varying this presumption requires a court order. In conflicts between biological parents, this may entail adjusting the legal custody rights towards a child, modifying the amount of time each parent has with a child, and awarding child support. If another adult, like a step-parent (or an adult family member of the child) wants to assume a role with rights and responsibilities over the child, then there are three options:
Adoption: An adoption entails an adult taking a child as their own, obtaining, full and complete parental rights and responsibilities over the child. Adoption requires the consent of both biological parents. Once an adoption is complete, an adoptive parent can even change the child's birth certificate to list them as the parent of the child. In cases of adoption, no further action is required by the Court once the adoption is finalized.
Guardianship: In the event of the death, absence, or inability of a parent, another adult can seek a court order designating them as a guardian of the child. The court order sets out the parameters of the guardian's rights and responsibilities, and the guardian is required periodically report to the court about the welfare of the child. Consent by the biological parents also is required for guardianship to be awarded.
Stand-By Guardianship: In Virginia, parents can prepare for a possible crisis in which they become unavailable by seeking a court order designating another adult as a Stand-By Guardian. This person has no immediate rights or responsibilities, but if this order is issued by the court when there is no active crisis, it makes the process of assuming this role go more smoothly should something occur.
While consent is a prerequisite for obtaining one of the three legal roles in a child's life, this is not always easy. A deceased or unavailable biological parent, or a parent who is incapacitated, may be unable to provide the consent, even if they would be willing. Under Virginia family law, a biological parent's consent can be worked around by providing proof that the parent cannot provide the consent for a legally recognized reason. It is important to work with a qualified family law attorney to put together a case for this lack of consent.
In rare circumstances, one parent may want nothing further to do with the children and they're willing to forgo all parental rights. Agreement between the parents in this circumstance is not enough, as both parents are responsible for the care of a minor child. However, if another person, like a step-parent is willing to step into the place of one of the biological parents, then it may be a different story. If all interested adults are cooperative in the process and provide the necessary information and consents to allow the change to proceed, then this may be an option for a potential step-parent.
At ReeseLaw, we work with interested adults in obtaining legal rights for step-parents. If you are interested in learning more about how this process can happen for you, contact us for a consultation.
Evening and weekend appointments are available under certain circumstances.
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