Having been perhaps been a de facto parent to a partner’s children for much of their lives, or having given them stability in the wake of their parents’ marriage breaking down, most stepparents have little idea how they are legally related to their stepchildren, and their rights, and responsibilities, if their spouse should pass away. At what is a hugely difficult time for the family left behind, there is often even more uncertainty as to what happens next.
What is a stepparent?
To formally become a stepparent you have to be married to, or in a civil partnership with, one of the child’s biological parents. If you simply live together without being married, it is insufficient to class you as a stepparent.
What does it mean to be a stepparent?
The fact of being married to the biological parent does not give any automatic rights or impress any obligations on you in respect of your stepchild. Therefore, while your spouse is alive, you have no legal obligation to pay anything towards your stepchild’s life, school fees etc., nor do you have parental responsibility for that child, meaning that, in legal terms, you do not have the rights and responsibilities of being a parent. For example, you have no right to have a say in their schooling, medical care etc.. While you may be heavily involved in the day to day care of a stepchild, legally speaking, the bigger decisions are not yours to take.
This is not to say that you cannot form a close bond with your stepchild, and be very involved in their upbringing, but it does mean that in the eyes of the law, your status as stepparent is below that of the biological parent, however involved or not they may be. You may have your spouse’s parental responsibility delegated to you, informally, for a limited time, such as if they go abroad for work and the stepchild is in your care, but this is limited, and very much for emergencies only.
What happens if we separate?
If you separate from your spouse, you do not have an automatic right to spend time with the child thereafter, even if you have acquired parental responsibility, unless you have adopted the child. Again you can apply to the Court in this regard for assistance, and the Court will look at this, as is usual, with the welfare of the child as the paramount consideration. This can lead to the Court giving the stepparent parental responsibility, or they may at least name them as someone with whom the child is to spend time, but it is a complex and discretionary area.
How can I pre-empt issues on my partner passing away?
If you wanted to make this relationship more formal during your spouse’s lifetime, you could enter into a parental responsibility agreement with a child’s parent, which would add you as a second or third parent with parental responsibility, but that does require the consent of anyone who already has parental responsibility, which, as might be imagined, is not always easily obtained. You could, if permission is not given, apply to the Court for parental responsibility, but this is a complex route, with the attendant legal costs, and anyone who has parental responsibility would have the opportunity to oppose it. It would also mean that you would obtain responsibility for maintaining the child as well.
Alternatively you could seek to adopt the child formally, which would mean extinguishing the parental responsibility of the parent who is not married to you. However, that is likely only to happen where that person cannot play a meaningful role in the child’s life.
If you and your spouse are concerned about the ability of the other parent to care for the child on your spouse’s death, they could seek a Child Arrangements Order. If that is not possible, it will at least assist if you, as stepparent, are appointed Guardian under your spouse’s Will, and a Letter of Wishes is prepared, setting out their concerns and preference as to who cares for the child in the event of their death. While this is not going to automatically mean that a stepparent will have care of the child, and is not binding, it can be powerful evidence in Court proceedings if as a stepparent you seek parental responsibility after your spouse’s death.
Can I still see my stepchildren on my spouse’s death?
On the death of your spouse, a surviving biological parent with parental responsibility will be assumed to be the person who should care for the child, even if they have not done so before that date. This is unless there is a Child Arrangements Order in force which named the deceased parent as the person with whom the child is to live, in which event, or if there is no other surviving parent with parental responsibility, the child will be cared for by the person who is appointed Guardian under the deceased parent’s Will.
You can bring an application to the Court to retain that relationship and the care of your stepchildren, but it will assist hugely to have taken some of the steps above.
These are complex situations, and often, naturally, highly emotional. Quite often, a couple may not wish to rock the boat with one of their exes and seek parental responsibility for a stepparent, but it is worth thinking about the steps that could be taken if a parent cannot care for their child any longer, particularly when it is a difficult, or indeed non-existent, relationship with the other biological parent.
The first step should be to take legal advice, given that every situation is different, and to be prepared for what happens at what is possibly going to be a very difficult time in any circumstances.
For further information, please contact Charlotte Skea-Strachan, Legal Director in the Family department or, alternatively, telephone on 020 7465 4300.
To learn more about divorce and separation you can download a free copy of our Essential Guide to Divorce and Family Law here.
