Can a Step Parent Gain Custody Over a Biological Parent?

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“Does a step parent have any legal rights over a step child? I have a 5 year old, my husband (stepfather) has been in her life since 14months old. I am terrified that if something were to happen to me, that our child would go to her biological father, who does pay minimal support and maybe sees her once a month for 4-5 hours. My fear is that she would be taken out of her emotionally and financially stable life that her stepfather provides. I honestly do not believe that her biological father could provide a stable life for her, he is single, has had quite a past criminally, hasn’t had a drivers license for 7years, and is just not emotionally able to care for her the way her stepfather does. Is there any kind of legal paper I can file, to state my wishes, to make it harder for the biological father to get custody, in the case of my death?”

[NOTE: Articles and answers on DearEsq., while written and published by lawyers, do not constitute legal advice, and no attorney-client relationship is formed by your reading of this information. You should always consult with an attorney for any legal situations.]

Biological father’s right will be superior to stepfather’s rights shoud anything happen to you unless in a guardianship proceedig it was shown by “clear and convincing evidence” that custody with biological father would be detrimental to the child.

Here’s California Family Code section 3041: “(a) Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing on this issue. (b) Subject to subdivision (d), a finding that parental custody would be detrimental to the child shall be supported by clear and convincing evidence. (c) As used in this section, “detriment to the child” includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require any finding of unfitness of the parents. (d) Notwithstanding subdivision (b), if the court finds by a preponderance of the evidence that the person to whom custody may be given is a person described in subdivision (c), this finding shall constitute a finding that the custody is in the best interest of the child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary.”

If your husband wants to step up and adopt, and take current financial responsibility and work with biological father to terminate parental rights and responsibilities that would be another story. I am not suggesting that, but that is the only realistic way I can think of to put your husband in superior custodial position to a biological father who is paying his court-ordered support and exercising visitation (other than the detriment bit in FC3041) should anything happen to you.



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Author: House Attorney

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