France’s 1789 document, Declaration des Droits de l’Homme et du Citoyen1, translates as Declaration of the Rights of Man and of the Citizen. It says nothing of stepparents. That oversight, however, was definitely not the cause of the French Revolution, though we are sure plenty of disgruntled stepparents played roles in crushing the ancien régime. What rights do stepparents have in Virginia, today? Can stepparents gain custody of a child after divorce, or earn visitation rights?
Your Rights as a Stepparent
The harsh news first regarding child custody and visitation: a stepparent in Virginia has no special legal rights above, say, a second cousin once removed, or the postal carrier. You enjoy the same protections afforded all U.S. citizens (the Constitution, its Amendments, federal and state laws) but you bear no legal relationship to the stepchild you parent.
Leave it to a Frenchman to write an entire book called L’Être et le néant; Jean-Paul Sartre’s book translates as Being and Nothingness, and, sadly, that is the plight of a Virginia stepparent hoping to seize rights over a minor child. You exist and the stepchild in your care is no doubt better off for that care, but beyond being the stepparent, you get nothing.
Hope and Root Beer Floats
Instead of leaving you in Sartre’s existential nightmare, we are going to offer you some tiny rays of stepparenting hope: a judge may consider you to have some standing — a legal phrase, not a random word — if you can demonstrate an ongoing and sincere relationship with your stepchild. Other factors matter, too:
- How involved you have been in the child’s life
- How long you have participated in place of the actual parent in the child’s life
- What kinds of emotional and financial ties you have with the child
- What kinds of activities you share with the child, like enjoying root beer floats and ball games
- How much the child would be harmed by denying you visitation or custody
Best Interests of the Child
Virginia’s motto is Sic semper tyrannis (Thus always to tyrants), but, considering all the times the Code of Virginia mentions it, and all the times we at The Firm For Men have talked about it, a more apt motto would be, “In the Best Interests of the Child.”
If you, as the stepparent, can demonstrate that your continued role as stepparent is vital to the child’s best interests, and to continue that role you must have visitation rights, a judge may be convinced that you have standing to be included in visitation rights just as a grandparent or uncle might be.
Stepparent Rights and Virginia Law
Just behind “best interests of the child” in our hit parade of phrases we use around the office comes those three magical words, “Code of Virginia.” No wonder: it is the state’s law compendium, and in it we find this gem that leaves many a stepparent positively giddy with excitement:
“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.”
This is from Code of Virginia § 20-124.2, and allows a Virginia judge broad discretion to award either custody or visitation to you as a stepparent. This is a simple matter if the children’s father has passed away after the divorce. The court would recognize you as being a person with a legitimate interest in the children and a pillar of stability in their world. You would, if the court were petitioned by a skilled attorney, have an excellent chance of being recognized as a person with standing in the case.
Visitation or custody can, though, be awkward if both biological parents are still vertical in Virginia.
Presumably you, as the stepdad, have married the children’s mother after her divorce. If the children’s father is still around and fulfills some of the basics of fatherhood, the court could award custody to him and visitation to his old wife (your new wife), without recognizing you at all.
Unbearable Lightness of Being a Stepparent
If that did not warm you like a joyous ray of hope, allow us to lift you up with the encouraging news that, by adopting your stepchild, you can gain all the parental rights you richly deserve. If you legally adopt your stepchild, you are no longer simply the stepparent. You gain legal standing with adoption, which means you can request visitation and, if desired, custody of the child.
If the biological father is still alive, even if incarcerated or nowhere to be found, you have to go through some hoops to get the stepparent adoption, but they are not insurmountable obstacles. You go through the right filings, get the biological father to surrender his parental rights or wait the right amount of time for the biological Dad to turn up, and then you can legally adopt your new wife’s children.
There; we have taken you from the depths of despair to the bliss of knowing you can get rights as a stepparent in Virginia. The only way to get these rights, though, is not to get a vote on them in the National Assembly of France. You need the services of a good family law lawyer, one skilled in navigating Virginia’s courts and in clarifying and amplifying your important role as your stepchildren’s stepfather.
Please call The Firm for Men at (757) 383-9184 or contact us online so we can help provide you with the practical, sound legal advice you need regarding child adoption, stepparents, visitation and more. We have offices in both Virginia Beach and Newport News, just a hop, skip, and a jump away from anywhere in Hampton Roads. Call us today!