Last week a 16 year old in Arkansas lost his mother. A vibrant woman in her 30s, she went to the emergency room — and shockingly died in the hospital the next morning. Her son is estranged from his father after years of abuse, but had until recently lived in a shared custody arrangement. Her husband had been planning to adopt the boy, but hadn’t gotten around to it. It’s a tragic story, but it’s also a good illustration of why putting off stepparent adoption can be a mistake.
What rights does the stepparent have?
If he has not adopted the child, a stepfather has no legal rights. Arkansas law upholds the rights of the biological parents, and the father will usually have custody automatically on the death of the mother. If the biological father’s paternity is legally established, his rights are strongly protected.
If he had adopted the child, the parental rights of the father would have been terminated and he would legally have been the father of the child. Without the legal process, the stepfather does not have any rights over the child. He can petition for visitation, but does not automatically have that right if the biological father objects.
What options does he have?
Decisions about custody, visitation, and guardianship all center on the best interests of the child. If the stepfather has been in loco parentis — that is, serving in the place of a parent, and can prove it, that will help him in any petitions he may file. He can petition for visitation or for adoption or guardianship.
In general, if the biological father wants custody and the court agrees that he is a fit parent, he will receive custody.
In the example discussed here, there was abuse. If this was documented, it will be considered by the court. However, it will be up to the stepfather to prove it. He must also prove that he has been like a father to the boy. If he has evidence of these claims, he can petition for adoption and might succeed. Arkansas courts will consider the nature of the relationship between the child and the step-parent, the length of that relationship, and the role the step-parent played in the child’s life. The court will also evaluate the stepfather’s ability to provide a stable and nurturing environment for the child, just as they would have if he had followed through on stepparent adoption.
He might also be able to mediate an agreement with the biological father. Shared custody, visitation rights, or even a mutually agreed adoption with the biological father’s consent may be possible.
What if he had followed through on stepparent adoption?
This is one of the saddest parts of the story. The stepfather in this case had intended to adopt the boy. They might have gotten as far as asking the father for consent or gathering evidence to ask that his parental rights be terminated. Since they didn’t take those actions, though, there is no legal connection between the boy and his stepfather.
The mother and the stepfather probably didn’t see any real hurry. She was a young woman and expected to live a long and healthy life. Stepparent adoption probably seemed like something they could put off for a more convenient time. If you’ve been planning to adopt your stepchild, contact Heimer Law for a free consultation. You might find that it’s easier than you expect.
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