What are step parent's rights if the biological parent, their spouse, dies?
I have a wonderful husband who is an awesome stepfather to my two boys. My boys are two and five and my husband has been around since the youngest one was 6 months. I am now pregnant with our first child. What kind of rights would my husband or parents have if I died? I am assuming that my exhusband would take full custody of my 2 and 5 year old. Is there any legal way to guarantee that my parents and/or husband could get visitation? It really concerns me that my exhusband would not allow them to see the boys if their wasn't a legal binding document. I can't imagine the pain and emotional stress that my boys, husband, and parents would go through if they never got to see each other again. We all live in Texas, not sure that matters.
2007-06-03T07:31:18Z
My exhusband would never let my current husband adopt my boys. I know that my parents would allow my husband to see the boys when they had visitation. I don't expect to die anytime soon, but you never know when it is your time.
hexeliebe2007-06-03T05:54:56Z
Favorite Answer
Depending on in what state you live when you die, your grandparents MAY have a right to file for visitation based on your death. Your husband has no legal rights whatsoever.
The only thing you can do is to have your current husband file for a Standby Guardianship thorugh the courts. That way, if you die, he would immediately be appointed the children's guardian until such time as your ex can take posession.
It's not a solution, just a way not to upset the balance until it needs to be.
EDITED FOR ALL OF YOU who mentioned a will or separate agreement.
First of all, a will written to include a child's disposition is void on it's face. A will is valid ONLY for property and children are NOT property.
If there is anyting in the will regarding custody or guardianship of a child, the will can and will be invalidated.
Also, a contract / agreement to the disposition of a child is void on it's face as against public policy. Such a contract / agreement can be voided by the state or either party under these circumstances.
I didn't write my answer because i like to watch myself type or because I didn't have 35 years experience in family and children issues both nationally and internationally.
As others have said, There are only TWO ways for the step parent to gain custody.
1. Through an adoption and ONLY if the court terminates the biological parent's rights or the adoption is joined by a simultaneous TPR petition by either the court or the biological parent, or;
2. Through guardianship which gives the guardian the right to petition for custody. In this case, if the guardian (as I said in my post) is of a standby nature, then they stand in line behind anyone who wishes to adopt and is either the biological parent or of familial lineage.
Poster, A will does NOT allow disposition of a child. PERIOD! In any state.
Unless your husband adopts them, he would have to get a lawyer and go to court if you were to pass away while they were still juveniles. The grandparents will have to do the same but I wouldn't recommend using the same lawyer since their rights would fall into a different category.
If you don't have a will, you need to go get one made and talk with the lawyer for advice on this issue. You can always request visitation be given to your husband but I don't think you can bind it on anyone without it going through court after you are gone. One advantage to having it put in the will ~ that speaks for what you wanted if you passed and no one can say otherwise with it in writing and signed by you.
Hopefully you will live a long, healthy life and this won't be an issue. God bless
alot of things would determine this. where is the dad? is he in the picture? do you guys have a custody agreement? if the parental rights were terminated (from the dad), then you can make a living will. if the rights were not, then he would get the kids that he has fathered. period. then, he can let them visit with whomever he wants, or doesnt want. if you have a certain "wish" for them, you and your new husband need to go to an attorney, and make a will. without that, he gets all the say so. hope nothings wrong health wise, that would make you wonder these things...
your husband has no rights, but you could write a will, in the event that that happened requesting that the children go to him or that he could visit them If the father is not involved in the child's life or is a danger to them, you could see about your husband being able to adopt. But if the biological dad protests then it's useless..especially if he is involved in their life, is paying child support and so forth. Now if he had abandoned his children in every way, then the court would be more lenient to adopting them out. The only way he has rights is if they are his children. Your parents would have rights to see their grandchildren, if a problem arises, they may have to take it to court for grandparent rights. I'm not sure about Texas, but here in FL, grandparents can fight for rights to see their grandchilren if their children or children-in-laws are keeping them from their grandchildren