The recent revelations of infidelity by actress Sandra Bullock’s husband, Jesse James, and subsequent speculation that Bullock will seek custody of her stepdaughter (James’ biological daughter) has raised the issue of whether a stepparent has the right to gain custody of a stepchild.
In the case of Bullock, her and her husband won a custody battle for the child from James’ ex-wife, the biological mother. Bullock has helped raise the child, and by all reports is a doting, loving stepmother. But is that enough for a stepparent to obtain custody of a stepchild?
In general, third party standing for custody is extremely limited, according to domestic relations attorney Jennifer Paine.
“A natural parent’s interest in his child is a fundamental constitutional right. Whenever a child custody dispute arises between a natural parent and a third party, such as a second wife, the law presumes it is in the child’s best interests for the natural parent to have custody and decide what visitation, if any, the child has with the third party,” said Paine, whose firm Cordell & Cordell, P.C. represents men and fathers in domestic litigation issues. “This is the law even if the third party and the child developed a bond over an appreciable period of time because, generally, fit parents who are willing and able to care for their children have a special constitutional preference to do so.”
But thanks to the rise of blended and non-traditional families, third parties are allowed to seek custody or visitation under very limited circumstances, according to Paine. She said the limited circumstances in most states include:
- When the third party has adopted the child or has become the child’s guardian
- When both parents are unfit to raise the child
- When the child has spent a considerable time with the third party in a child-parent relationship
- When the natural parent has died or has lost his parental rights.
The third party still has a considerable challenge ahead even if they are determined to have the right provided by law to pursue custody because the law presumes the natural parent should have custody, Paine said.
“The third party must prove both that the natural parent is unfit to have custody or visitation and that custody or visitation with the third party is in the child’s best interests,” Paine said. “In other words, the third party has to defeat one of the most precious constitutional rights in our country.”
Other common questions involving stepfamilies and divorce:
Is it possible to have a stepparent adoption reversed?
When an individual adopts a child, they gain all the rights and privileges and responsibilities of a biological parent. As the saying goes, you divorce spouses, not children. However, depending on what the parenting plan and court order state with regards to custody, many of those rights, privileges and responsibilities may have changed with the divorce.
William Halaz, III is a Staff Attorney in the Arnold, Missouri office of Cordell & Cordell, P.C. Mr. Halaz is licensed to practice in the state of Missouri. Mr. Halaz received his bachelor’s degree in Political Science from Southeast Missouri State University. Then continuing his education, received his Juris Doctor from St. Louis University’s School of Law.
I am considering a divorce from my wife. We have three kids, and the oldest is my stepson and there is a prior custody agreement in place between my wife and her old boyfriend for my stepson. I’m seeking joint custody of our kids. Since my stepson is not in any way linked to me legally, am I off the hook legally in terms of child support?
Because there is an existing custody agreement in place regarding your stepson, you should not have any legal obligations for support. Although you are seeking joint custody and shared physical custody, you may still be obligated to pay child support or spousal support to your wife given the disparity in income depending on the laws in your jurisdiction.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.