Step parent visitation after death of parent

[mbgidzinski]

What is the name of your state (only U.S. law)? VA
My husband passed away unexpectedly after five happy years of marriage. He has a son who is 14. My husband and his ex-wife had 50-50 custody and my step-son wants to continue the schedule with me and my daughter (age 17) as his extended family, but his mother isn't likely to cooperate voluntarily. Can I sue for visitation (I know custody would be unlikely) and if so, what do you think my chances are? My step-son is desperate for an answer.

 

[Proserpina]

What is the name of your state (only U.S. law)? VA
My husband passed away unexpectedly after five happy years of marriage. He has a son who is 14. My husband and his ex-wife had 50-50 custody and my step-son wants to continue the schedule with me and my daughter (age 17) as his extended family, but his mother isn't likely to cooperate voluntarily. Can I sue for visitation (I know custody would be unlikely) and if so, what do you think my chances are? My step-son is desperate for an answer.

As a step-parent you have no inherent rights to visitation, although it has happened occasionally when the deceased spouse was the CP and the child lived with CP and the step-parent at the time of the death.

Courts are quite reluctant to usurp the remaining parent's right to decide who may or may not see their child. I do want to check further though.

 

[LdiJ]

What is the name of your state (only U.S. law)? VA
My husband passed away unexpectedly after five happy years of marriage. He has a son who is 14. My husband and his ex-wife had 50-50 custody and my step-son wants to continue the schedule with me and my daughter (age 17) as his extended family, but his mother isn't likely to cooperate voluntarily. Can I sue for visitation (I know custody would be unlikely) and if so, what do you think my chances are? My step-son is desperate for an answer.

Legal reality...you have no chance at all. Neither you nor your daughter have any legal realtionship with the child nor any legal standing to ask for visitation at all, much less a 50/50 schedule.

What's more, if you have allowed the child to think that he has any say in the matter, then you have been a seriously bad stepparent.

Your only valid hope of maintaining a relationship with the child is to get on the good side of the mother, and convincing her to believe that you continuing a relationship with the child is in the child's best interest...and even in that scenario, you won't end up with anything even remotely resembling 50/50.

 

[Maray1980]

I have no legal advice, but I'm sorry for the loss of your husband and his son losing his father.

 

[mbgidzinski]

I thank you for your kind response. It has been a very difficult time for all of us and I am not anxious to plunge into a legal battle.

 

[mbgidzinski]

As a step-parent you have no inherent rights to visitation, although it has happened occasionally when the deceased spouse was the CP and the child lived with CP and the step-parent at the time of the death.

Courts are quite reluctant to usurp the remaining parent's right to decide who may or may not see their child. I do want to check further though.

I surmised I have no inherent rights, but there are some who have suggested that the court would take into consideration a young man's desire to maintain a relationship with his step-family in the case in which the remaining parent is resistant.

 

[mbgidzinski]

Legal reality...you have no chance at all. Neither you nor your daughter have any legal realtionship with the child nor any legal standing to ask for visitation at all, much less a 50/50 schedule.

What's more, if you have allowed the child to think that he has any say in the matter, then you have been a seriously bad stepparent.

It is not I, but his counselor (LCSW), who has suggested that the court would take into consideration his desire to continue our relationship. He is almost 15 and had planned on asking to live with us full-time once he started high school in the fall. I have not mis-lead him. I have only promised to explore the options.

Your only valid hope of maintaining a relationship with the child is to get on the good side of the mother, and convincing her to believe that you continuing a relationship with the child is in the child's best interest...and even in that scenario, you won't end up with anything even remotely resembling 50/50.

Unfortunately, the mother has no concept of what's in the child's "best interest." Difficult to believe, I know, but this person treats her son like a possession and spent the first ten years of his life trying to poison her son's feelings for his father. With years of therapy and despite her efforts, he and his father eventually grew very close... and he grew close to me and my daughter. I will always be there for him, even if I have to wait three years...

 

[Proserpina]

I surmised I have no inherent rights, but there are some who have suggested that the court would take into consideration a young man's desire to maintain a relationship with his step-family in the case in which the remaining parent is resistant.

The problem is, Mom and Dad both had rights, and even though Dad is gone Mom still retains all of those rights...which will trump yours every time.

(Also, a 14 year old can't generally decide where he wants to live - it's not his decision to make. He can perhaps make his wishes known to the court but it will still be an uphill battle with a lot of emotional trauma - frankly the last thing either of you need right now is the added pain of a court battle)

Mom is holding the cards at the moment. But kiddo will know, deep down, that he is/was also loved by his father and step-mother. That's not going to go away.

 

[thedoctorisin]

Legal reality...you have no chance at all. Neither you nor your daughter have any legal realtionship with the child nor any legal standing to ask for visitation at all, much less a 50/50 schedule.

Per Virginia law, the OP does have legal standing to ask for visitation:

§ 20-124.2. Court-ordered custody and visitation arrangements.

B. In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.​

In fact, for filing any custody or visitation motion with the court, it is a requirement to submit an affidavit detailing all the adults the child has resided with over the past five(?) years.

However, this is not a do-it-yourself project. The OP will definitely need a lawyer. I'd recommend an initial consultation with a good family law lawyer to assess the chances. Ask around for recommendations from people who have divorced in Virginia. -- There is a world of difference between a bad lawyer or an okay lawyer versus a really good lawyer.

 

[mbgidzinski]

The problem is, Mom and Dad both had rights, and even though Dad is gone Mom still retains all of those rights...which will trump yours every time.

(Also, a 14 year old can't generally decide where he wants to live - it's not his decision to make. He can perhaps make his wishes known to the court but it will still be an uphill battle with a lot of emotional trauma - frankly the last thing either of you need right now is the added pain of a court battle)

Mom is holding the cards at the moment. But kiddo will know, deep down, that he is/was also loved by his father and step-mother. That's not going to go away.

(Sigh) Thank you. You are right about the court battle. I am more concerned about his rights than mine. But if he truly has none, I guess all we can do is hope for the best.

 

[thedoctorisin]

Definition from Virginia law:

§ 20-124.1. Definitions.

"Person with a legitimate interest" shall be broadly construed and includes, but is not limited to grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child. A party with a legitimate interest shall not include any person (i) whose parental rights have been terminated by court order, either voluntarily or involuntarily, (ii) whose interest in the child derives from or through a person whose parental rights have been terminated, either voluntarily or involuntarily, including but not limited to grandparents, stepparents, former stepparents, blood relatives and family members, if the child subsequently has been legally adopted, except where a final order of adoption is entered pursuant to § 63.2-1241, or (iii) who has been convicted of a violation of subsection A of § 18.2-61, § 18.2-63, subsection B of § 18.2-366, or an equivalent offense of another state, the United States, or any foreign jurisdiction, when the child who is the subject of the petition was conceived as a result of such violation.​

 

[mbgidzinski]

Per Virginia law, the OP does have legal standing to ask for visitation:

§ 20-124.2. Court-ordered custody and visitation arrangements.

B. In determining custody, the court shall give primary consideration to the best interests of the child. The court shall assure minor children of frequent and continuing contact with both parents, when appropriate, and encourage parents to share in the responsibilities of rearing their children. As between the parents, there shall be no presumption or inference of law in favor of either. The court shall give due regard to the primacy of the parent-child relationship but may upon a showing by clear and convincing evidence that the best interest of the child would be served thereby award custody or visitation to any other person with a legitimate interest. The court may award joint custody or sole custody.​

In fact, for filing any custody or visitation motion with the court, it is a requirement to submit an affidavit detailing all the adults the child has resided with over the past five(?) years.

However, this is not a do-it-yourself project. The OP will definitely need a lawyer. I'd recommend an initial consultation with a good family law lawyer to assess the chances. Ask around for recommendations from people who have divorced in Virginia. -- There is a world of difference between a bad lawyer or an okay lawyer versus a really good lawyer.

Ah! So there may be a glimmer of hope, after all! Thank you!

 

[thedoctorisin]

Ah! So there may be a glimmer of hope, after all! Thank you!

In most states, former stepparents have no legal standing whatsoever, but fortunately for your situation, Virginia has statutory law recognizing your legitimate interest in seeking visitation. The parent-child bond is still primary, but you do have a chance depending on the precise circumstances of your case.

Good luck!

 

[Proserpina]

Definition from Virginia law:

§ 20-124.1. Definitions.

"Person with a legitimate interest" shall be broadly construed and includes, but is not limited to grandparents, stepparents, former stepparents, blood relatives and family members provided any such party has intervened in the suit or is otherwise properly before the court. The term shall be broadly construed to accommodate the best interest of the child. A party with a legitimate interest shall not include any person (i) whose parental rights have been terminated by court order, either voluntarily or involuntarily, (ii) whose interest in the child derives from or through a person whose parental rights have been terminated, either voluntarily or involuntarily, including but not limited to grandparents, stepparents, former stepparents, blood relatives and family members, if the child subsequently has been legally adopted, except where a final order of adoption is entered pursuant to § 63.2-1241, or (iii) who has been convicted of a violation of subsection A of § 18.2-61, § 18.2-63, subsection B of § 18.2-366, or an equivalent offense of another state, the United States, or any foreign jurisdiction, when the child who is the subject of the petition was conceived as a result of such violation.​

Does this make a difference?

[Note: Even though a non-parent may be able to apply for custody, the natural parents of the child will be given preference in a custody dispute, as long as they are considered fit (able) to take care of the child.**

* Va. Code Ann §§ 20-49.1; 31.1
** Va. Code Ann. § 20-124.2(B)
*** Va. Code Ann. § 20-124.1

 

[thedoctorisin]

Does this make a difference?

It definitely makes a difference for a custody battle, but it doesn't seem to rule out visitation. (Just my opinion from reading it as a non-lawyer.)