Do Stepparents Have a Right to Visitation or Custody in a Divorce?

The good news is that the popular belief that fifty percent of all marriages end in divorce is no longer true. The bad news is that divorce is still an all-too-common occurrence, and it is not unusual for blended families to split up as well as first marriages. If you have been a stepparent to your spouse’s children from a previous relationship, you may care about them as though they had always been yours. But what rights do you have to maintain involvement in the lives of those children if you and your spouse divorce?

In order to have the same rights to custody and visitation as your spouse, the children’s natural parent, you must have legally adopted your stepchildren. Once an adoption is finalized, South Carolina law grants an adoptive parent the same rights and responsibilities as a natural or biological parent. Unfortunately, stepparent adoption in a blended family is not a given, because it requires consent from the absent biological parent, unless that parent has died or had his or her parental rights terminated (for example, as a result of abuse or neglect).  Moreover, if you do adopt your stepchildren, that cuts off the absent biological parent’s obligation to pay child support.

If you have not adopted your stepchildren, the sad truth is that you may have no legal rights to maintain your relationship with them. The judge will determine custody and visitation in your divorce based on the best interests of the child, as specified in Article Two of the South Carolina Children’s Code. For practical purposes, this means that the court is unlikely to act against the biological parent’s wishes. There are, however, limited circumstances in which you may ask for custody or visitation.

De facto Custodian

The Children’s Code permits a person who can establish that he or she has been a child’s “de facto custodian” to request custody and visitation with that child. The standard is a stringent one and must be met by clear and convincing evidence. To be a de facto custodian, you must have been the primary caregiver for and financial supporter of the child, as well as:

  1. Have lived with the child for six months or more if the child is under three; or
  2. Have lived with the child for a year or more if the child is older than three.

Alternatively, South Carolina courts have recognized that an individual who can prove that he or she is a child’s “psychological parent” may be awarded visitation even over the objection of the child’s natural parent. To prove psychological parenthood, you must establish:

  1. That the natural parent consented to and fostered your parent-like relationship with the child;
  2. That you and the child lived together in the same household;
  3. That you assumed obligations of parenthood by taking significant responsibility for the child’s care, education, development and financial support; and
  4. That you have been in a parent-like role long enough to have established a bonded, dependent, parental relationship with the child.  Middleton v. Johnson, 369 S.C. 585, 633 S.E.2nd 162 (Ct. App. 2006).

Consult a Greenville Family Law Attorney

If you or your spouse is contemplating a divorce, the best course of action is to seek advice from a knowledgeable family law attorney.  Robert Clark is a family lawyer based in Greenville with the experience to guide you through the many thorny issues that divorce can raise, including sensitive questions of custody and visitation. Contact Robert Clark of Greenville Family Law today for a consultation.

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