If you and/or your spouse have children from a prior relationship, it is important to plan for the future of your children. But what legal rights do stepparents have regarding their stepchildren? If you have ever spoken with an attorney, it probably doesn’t surprise you to hear that the answer is “it depends.” Understandably, being a stepparent adds a few wrinkles that otherwise do not exist for biological parents.
Can I adopt my stepchild?
Under Nebraska law, there are specific requirements that must be met for a stepparent to adopt a stepchild:
- The adopting stepparent must be married to the legal (usually biological) parent;
- Both you and your spouse (the legal parent) must join in the petition;
- The child must have resided with the stepparent for at least six months;
- The noncustodial birth parent must consent to the adoption; and
- The child must consent if the child is over the age of 14.
What if my stepchild’s other birth parent will not consent to the adoption?
The easiest scenario for a stepparent adoption is if the noncustodial birth parent consents to the adoption. In this case, the noncustodial parent would be relieved of their parental duties and responsibilities and their parental rights to the child would be relinquished. But what if the parent does not want to voluntarily consent and relinquish their parental rights? There are a few limited scenarios where a stepparent could still adopt the stepchild over the wishes of the noncustodial birth parent:
- The noncustodial parent has abandoned the child for at least six months prior to the filing of the adoption petition; OR
- A court has previously terminated the noncustodial parent’s parental rights; OR
- The noncustodial parent is found unfit (i.e. abuse, neglect, mental illness, etc.); OR
- The noncustodial parent lacks the legal capacity to consent.
If the whereabouts of the noncustodial parent are unknown, or if the child was born out of wedlock, different requirements must be met. The requirements set forth above address the scenario where the stepchild’s biological parents were married at the time of birth, divorced, and the custodial parent remarried the stepparent seeking to adopt or the biological father is otherwise clearly identified.
What happens in the case of death or divorce?
If the death or divorce happens after you have adopted your stepchild, you will be treated just as a biological parent would be. You have the same rights and responsibilities as a biological parent. This means that you may be responsible for child support. This also means that you will be able to petition for visitation, or even custody.
If the death or divorce occurs without you having adopted your stepchild, you do not automatically have any legal rights to your stepchild. Your stepchild’s biological parent(s) have legal rights superior to yours. While you will not be required to pay child support, custody issues can become complex under these circumstances.