When you get married to an individual who already has a biological child from a previous relationship, you become that child’s stepparent. However, this is not a legally bound relationship. Though you may already be a family, you cannot become the child’s parent until you formally adopt the child.
Stepparent Rights to Adoption
Under Pennsylvania law, anyone can adopt a child, including a stepparent wanting to adopt a spouse’s child. However, there are requirements to do so.
Typically, the parental rights of the child’s biological parent must be terminated before someone can adopt the child. The exception, of course, is when a stepparent wishes to adopt their spouse’s child.
If the spouse of the stepparent is one of the child’s biological parents, the general run required the biological parent to terminate his or her parental rights before the adoption could take place. However, to preserve the new family, the law relieves the biological parent for the requirement. However, the parental rights of the other biological parent must still be terminated before the adoption can take place.
It is important to know that if you adopt your spouse’s child after you marry, you hold the same rights and responsibilities with respect to that child will be the same as those of a biological parent. If a divorce occurs, you then have the same rights to seek custody and child support.
The key to success in stepparent custody/visitation cases is first obtaining standing to seek custody, followed by persuasive arguments and a demonstration that the proposed action is in the best interest of the child.
In Loco Parentis
The term “in loco parentis” means that a person has acted “in the position of a parent.” Under the law, a stepparent may stand in loco parentis with the consent of the biological parent–typically the spouse. The stepparent can then assume parental responsibilities without legal adoption.
However, these requirements are on a case by case basis. If a stepparent succeeds in proving in loco parentis, they may be entitled to seek custody or visitation of the child if a divorce occurs.
In 2002, the Pennsylvania Supreme Court granted courts the right to allow what is known as second-parent adoption by a same-sex partner without the termination of the other partner’s parental rights.
According to childwelfare.gov, “Second-parent adoption is the adoption of a child by a second parent in the home who is not married to the legal parent of the child. A second-parent adoption allows a second parent to adopt their partner’s child without the ‘first parent’ losing any parental rights. Adoptive parents usually have the same rights as biological parents in custody and visitation matters in States that allow second-parent adoption.”
Under new Pennsylvania legislation, third parties can also seek custody of children when a child’s biological parents cannot be located. This is of particular importance when a non-family member had been assuming care of the child. To be granted custody, that person must prove a “sustained, substantial and sincere” interest in the child.