Step Parent Rights

What if my child is not my biological child? Do I still have rights?

In today’s society, it is very common for couples to marry that have children from previous marriages or relationships. So what happens to those children when you and your spouse decide it is time to call it quits? Do you still have rights?

Lets look at a scenario. Susie and John have been married for 10 years. They have one child together, a 5-year-old. John has a 12-year-old child from a different relationship. We will call him Joe. Joe’s biological mother has been non-existent for almost his entire life. Joe has really known no other mother than Susie. However, Susie and John decide they would like a divorce. Where does that leave Susie and Joe’s relationship?

In these situations, Susie’s rights may be limited because she is not the biological parent. However, this does not mean that she has no rights. The courts will look at the Arizona Third Party Rights statute. It is A.R.S. § 25-409. Within this section, there are two types of third party rights you can petition for, visitation or legal decision-making authority and placement of the child.

Looking at our scenario above, it is likely that Susie will want more than just visitation with Joe, as she has been his mother his entire life. If Susie wants more than just visitation she will need to establish that she (1) stands in loco parentis to Joe (this means she has stood in the place of a parent), (2) it would be detrimental for Joe to remain in either of his biological parent’s care who wish to keep or acquire legal decision-making, (3) no order has been entered concerning legal decision-making or parenting time within one year prior, and (4) one of the following applies: a legal parent is deceased, the child’s legal parents are not married to each other, and a proceeding for dissolution of marriage or legal separation of the legal parents is pending at the time the petition is filed.

Unfortunately, unless there is some concern for Joe’s safety and welfare while with John, Susie will not be able to get placement or legal decision-making of Joe. However, say John is a drug addict and has moved Joe into some sort of unsuitable living conditions. In this situation, because Joe’s biological mother does not wish to keep Joe or have legal decision-making over him and it would be detrimental for Joe to stay with John, Susie has a high chance of getting placement of Joe with her and legal decision-making over him.

In the situation that John is a fit parent, Susie can still petition for visitation rights with Joe. Susie will need to prove that it is in the best interests of Joe that she have visitation with him. She will also need to prove one of the following: (1) One of the legal parents is deceased or has been missing at least three months, (2) the child was born out of wedlock and the legal parents are not married to each other, (e) for grandparent visitation, the marriage of the parents of the child has been dissolved for at least three months, and (4) for in loco parentis visitation, a proceeding for dissolution of marriage or for legal separation of the legal parents is pending.

Here, Susie is able to meet two of those factors. Joe’s legal parents were never married. Additionally, Susie has stood in loco parentis to Joe. As discussed above, this means that Susie stood in the place of a parent. Susie was standing in the place of Joe’s mother. Susie will not get any sort of equal parenting time here, but she will be able to have visitation with Joe. So do not worry if you are in this situation. There are many factors that protect third parties. It is likely you will meet one of them, and ultimately continue your relationship with your child.

Also keep in mind that Susie and John can always decide to treat Joe the same way they would like to treat their biological child. Susie and John can always decide that Susie will have visitation with Joe whenever she has parenting time with her biological child. In today’s day and age, families come in all shapes and sizes. Many times, figuring out how to minimize the impact of divorce on all children within the family, regardless of their biology, can be the very best outcome for the family moving forward.

If you are facing a third party custody issue, it is important that you meet with an experienced Arizona Family Law attorney. These cases can be hotly contested and legally complex. For questions regarding your case, call us today at 480-649-2905.