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What are a step-parent’s rights in divorce?

Step-parents are often portrayed in popular culture as distant, malevolent influences – you only have to think of Snow White to get a picture of the archetypical “evil step-mother”.

However, more usually the reality is that step-parents have spent many years living as a family and have grown to love step-children as their own. That is recognised by National Step-Mother’s Day, celebrated on the Sunday after Mother's Day since 2000.

Caring and loving step-parents know how important their bond with the child is and may be worried that divorce from a former spouse may damage this precious relationship, which can be every bit as damaging as separation from a biological parent. A step-parent who is getting divorced or going through separation may feel confused over what rights they have in relation to their step-children.

Step-Parent legal definition

To be considered a step-parent in law means the individual must be married to a biological parent of a child. Simply living together for a substantial period is not sufficient to meet this legal definition, whether the individual has taken on a traditional parental role or not. However, it must also be recognised that increasingly families can take many forms. An unmarried ‘step parent’ may therefore be an important figure in a child’s upbringing.

Contact arrangements

A divorced step-parent does not have an automatic right to see their step-child. The paramount concern is what is best for the welfare of the child and if a step-parent played an important part in that child’s life it could be detrimental to their well-being if that relationship is not maintained. It is always best to reach an agreement with your former spouse. An experienced family law solicitor can help by handling negotiations.

Using a family mediator or collaborative lawyer can also be helpful to work out the details, however, if it has not been possible to reach an agreement and mediation has failed, then a family lawyer will be able to assist you with an application for a court order. Before issuing a court application you have to attend a Mediation Information Assessment Meeting (MIAM) unless an exemption applies.

Child arrangements order

As a step-parent (even if you are no longer married to the child’s parent) you do not need the court’s permission to make an application to the court for a child arrangements order and can make an application in the same way a biological parent can. In some cases, you may be able to obtain rights for your step-child to live with you especially if there are concerns about their welfare or safety. Child arrangements orders can state that a child is to live with their step-parent and spend time with their biological parent, however orders of this nature are not common. A shared living arrangement is an alternative that the court may consider is best for your step-child.

The welfare checklist

The Children Act 1989 sets out the factors which must be taken into account in all cases. The court will ultimately be looking at what is in the child’s best interests and will consider a number of factors in addition to the child’s age, sex and background when deciding whether to make a child arrangements order. The feelings of the child as well as their physical, emotional and educational needs will be taken into account. The likely effect on the child of any change in their circumstances as well as any harm which the child has suffered or is at risk of suffering will be significant factors in any decision, as will the court’s judgement of how capable each of the parents (and any other person the court considers relevant) is of meeting the child’s needs.

Listening to the child

Your step-child may have strong views regarding where they want to live and who they want to spend time with following a separation. Part of the court’s considerations when making any child arrangements order is to take the child’s views into account. How relevant they will be will depend on the child’s age and their understanding of the issues involved. In such cases the court can arrange a meeting between the step-child and an officer from the Children and Family Court Advisory and Support Service (Cafcass), who will then be able to report the child’s wishes and feelings to the court. The older the child is and the more they understand the consequences of their choices, the more weight the court will give to their wishes.

Getting the right legal advice

Step-parents concerned to protect their step-child’s future should also consider making a will. Unlike biological children, a step-child is not entitled automatically to any inheritance from a step-parent unless this is specified in a will. Failure to make adequate provision for those you treated as a “child of the family” after your death means they would have no recourse but to make a claim against your estate. It is essential to take expert advice in these circumstances so that a precious relationship can be maintained.

Disclaimer

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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