In order to be a step-parent you must have married or have entered into a Civil Partnership with one of the child’s biological parents. If you only live with the biological parent, then your rights will be slightly different. The position as Step-parent only comes from marriage or Civil Partnership with the natural parent of the child.
For most step-parents their relationship with their step-child and the need to consider the legal status of the situation, usually flows from that step-parent actually living in the same household as the child and being in a position of acting as parent and sharing the parenting with the natural parent on a daily basis (in loco-parentis).
Many step-parents who do not live in the same household as the child, are unlikely to feel the need to consider the legalities of their status as step-parent.
As a step-parent living in the household with a child and the child’s natural parent, it may be wise and appropriate for you as a person co-parenting the child on a day to day basis, to obtain legal rights in relation to your step-child.
You do not gain any legal rights in relation to the child merely by marrying the child’s parent. It is necessary to take legal steps to obtain those legal rights.
The main legal right which you are wise to obtain in relation to your step-child is that of Parental Responsibility.
Parental Responsibility is all the legal rights, duties, powers, responsibilities and authorities that by law parents have in relation to their child.
Parental Responsibility includes:
You can gain Parental Responsibility for your step-child. If you do gain Parental Responsibility that does not necessarily mean that the other persons with Parental Responsibility lose their Parental Responsibility.
There are a number of ways to obtain Parental Responsibility for your step-child:
It is possible to enter into a Parental Responsibility Agreement with the other parents with Parental Responsibility. This is a formal legal way to register an agreement to a step parent being granted Parental Responsibility amicably with consent.
By signing the Parental Responsibility Agreement, everyone with Parental Responsibility plus the step-parent wanting Parental Responsibility will agree to the Parental Responsibility being given to the step-parent.
You can obtain a step-parent Parental Responsibility form from the gov.uk website. If you have the form, it needs to be completed and witnessed by all persons with Parental Responsibility as well as by the step-parent. You will then need to take the agreement to the court office together with the child’s birth certificate and proof of identity. The form will need to be signed and witnessed by a member of the Court staff.
Copies of the Agreement will then need to be registered at the Principal Registry of the Family Division of the High Court– details are on the Parental Responsibility Agreement form.
If you do not have the agreement of everyone with Parental Responsibility you cannot, enter into a Parental Responsibility Agreement. In these circumstances, you can apply to the Court to obtain Parental Responsibility via a Parental Responsibility order.
Before you make any application to the Court you have to attend a family Mediation Information & Assessment Meeting (MIAM) as it is not possible to apply to the Court without your matter having been considered by mediators and without the mediators having signed the necessary Court form.
You can then apply to the Court asking the Court to make a Parental Responsibility Order in your favour as the step-parent.
All other persons with Parental Responsibility will have to be a party to your application and they will need to receive that application so that they have an opportunity to respond to it.
The court will decide whether to grant the Parental responsibility order based upon what is in the child’s best interests. The standard matters taken in to account by the court in deciding what is in a child’s best interest (the Welfare checklist) requires the court to consider:
In addition the court will also take into account when deciding to grant the Parental Responsibility:
Another way of obtaining Parental Responsibility for a step-child is via a Child Arrangements Order for the child to live with you. It would need to be an application to the Court for the Court to make a decision that the step-child would be living with you. Such an application would usually be a joint application together with your spouse and parent of the child.
The Child Arrangements Order would be in favour of both of you and your spouse jointly. If the Court make an Order that a child lives with you and your spouse, then there is a certain element of Parental Responsibility which attaches to the Order made in favour of you as a step-parent. It gives you Parental Responsibility for the child for the period of time during which you have that Court Order.
The court will apply the welfare checklist in deciding whether to grant such and order as set out above.
If an Adoption Order is made in your favour as a step-parent, it will give you Parental Responsibility. However, it will also extinguish the Parental Responsibility of other persons who did have Parental Responsibility.
This is why it is usually an application which is made by the parent of the child together with the step-parent so that in effect the child’s parents have their Parental Responsibility extinguished by the Adoption Order but also given to them both by virtue of the Adoption Order. In other words one natural parent loses the Parental Responsibility and then is granted it again immediately but the non- resident parent loses it for good.
Obviously, the Adoption Order is very serious as it does affect the rights of other natural parents.
Usually, you will need the consent of the other parent for the making of the Adoption Order. There are, however, some circumstances where that consent may be dispensed with. If the Court are to make such an Order then they will give paramount consideration to the child’s welfare throughout that child’s life.
This would not be easy and in many circumstances an Adoption Order is not a potential way forward or a sensible way to obtain Parental Responsibility.
If you are a step-parent with a Parental Responsibility Order the situation is that should your spouse (the parent of the child) die then Parental Responsibility will remain with those people surviving who have Parental Responsibility.
If you are a step-parent with Parental Responsibility you will continue to have your Parental Responsibility, although if the child’s other parent (not the person you are married to) also has Parental Responsibility then the two of you will continue to share with that parental responsibility on the death of one parent.
It may be that there is then no dispute between you and the other surviving natural parent and it is agreed that you will continue to have care of the child. If you agree arrangements with the other surviving parent with Parental Responsibility there will be no difficulties.
If, however, there is a dispute between you and that surviving natural parent then it will have to be a matter decided by the Court as to whether or not the child should continue to live with you or should be moved to live with their other parent.
It is possible for the natural parent to appoint you as the testamentary guardian for the child on their death. Appointing a Testamentary Guardian would be an indication by that natural parent as to who they would wish to take care of the child in the event of their death.
The appointment of a testamentary guardian does not pass that parent’s Parental Responsibility to another person in the event of their death if there are other persons surviving who also have Parental Responsibility. In the circumstances where other persons with Parental Responsibility survive that parent then those persons surviving with Parental Responsibility would have the equal legal rights in relation to the child.
If surviving persons with Parental Responsibility for a child cannot agree on such things as where the children should live then any dispute will have to be dealt with through court proceedings on the basis of an application for the court to consider the question of where the child should live.
Many step-parents ask what rights they have in respect of their step-child in the event of their divorce from the child’s natural parent?
If, as a step-parent, you ended up in a situation where you are no longer seeing or spending time with your step-child what can you do? There are routes for step-parents establish their position in relation to seeing their step-child.
If you are struggling to maintain a relationship with your step-child, it is very important that you get legal advice as soon as possible. The longer the matter is left without you having contact directly with your stepchildren, the more chance there is that the step-child will be set in a routine that does not involve you and this could lead to step-child reaching the conclusion that they do not wish to see you.
It is important that in the first instance you take steps to endeavour to see by direct means, to see what might be on offer for you to see your step-child. The first is to contact the parent with whom you coparented as step parent to see what can be agreed. In order to do this effectively you will need to put aside all conflicts and emotions and focus on what is in the best interests of the child.
If you can approach your estranged spouse with a sensible, practical, well thought out proposal for your future relationship with your step-child then it is more likely that perhaps the arrangements for you to see your step-child can be arranged and agreed amicably.
Even if you cannot have that conversation directly, it may be that a solicitor can contact your estranged spouse and try to negotiate an agreement on your behalf.
Mediation is both a potential way of resolving any dispute between you and your estranged spouse AND it is also a necessary formality if you need to take legal steps to pursue that time with your step-child through the court process.
Mediation is a non-Court resolution process which endeavours to encourage the people who are opponents in a dispute to meet together and have meaningful discussions with the assistance of a trained mediator. The mediator will facilitate discussions and will suggest potential solutions.
In order for mediation to be successful it does require a willingness of all parties to try to find a solution within the mediation process. You cannot force anyone else to use mediation it has to be voluntary.
You cannot apply to the court for an order without having attended a Mediation Assessment and Information Meeting (MIAM) and having obtained a signed certificate form a mediator confirming that your matter is not suitable for mediation.
If you are unable to resolve matters amicably you will need to consider obtaining a court order which requires that your estranged spouse must make the children available to see you on certain days at specified times. The order is known as “Time Spent With” Child Arrangements Order.
The availability of the court process to resolve disputes between adults regarding the arrangements for children is most generally a process which is used to resolve disputes between the natural parents.
As a general rule it is (and there are exceptions) only people who have Parental Responsibility for children who can apply for a Child Arrangements Order as of right. It is as a result of this that the natural parents usually have the right to use the process automatically.
Step-parents may not be able to apply as of right, but may first have to obtain the permission of the court to allow them to make an application. As a step-parent you may be wise to consult a solicitor to check if you are in a category of individual who can apply to the court “as of right” without needing the court’s permission. It will depend on the circumstances of you case.
Some step-parents will, however, have to overcome the first hurdle of obtaining the permission of the court before their application can be considered. The Court’s decision on whether or not to grant permission to you as a step-parent will be made based upon the following considerations:
You should note that both parents of your stepchild will have an opportunity to oppose your application for permission.
If as a step- parent you are given permission to make your application for the Court to consider making a Child Arrangements Order, then after such time as that permission is granted, the Court’s consideration of the disputes between you and the parents of your stepchild will take place along similar lines as those cases of disputes between two parents.
When making such Orders, the Court will consider the welfare of the stepchild including:
As in all cases involving children all the parties involved in the court process are encouraged to put the best interests of the children first. The court will always endeavour to put the best interests of the child first.
There are some circumstances where it may be that your stepchild’s parents are unable to look after them; there may be circumstances where everyone agrees that the child should continue to live with you as the step-parent or maybe you believe that your step child is better off living with you after separation and wish to pursue that.
If there is a dispute as to the person with whom your step-child should live then the dispute may need to be resolved by way of an Application to the court for a “Live with” Child Arrangements order seeking an order that the Step-child should live with you.
If you obtain a Child Arrangements Order then it will also give you as Step-parent, Parental Responsibility for that Step-child (as Parental Responsibility is built in to the order granted to the person with whom a child is living for the life time of that order). In other words if the court orders that your step-child should live with you that order also includes you having Parental Responsibility for the child.
As with the Child Arrangements Order for the Children to “spend time” with you referred to above, you may need to obtain the court’s permission before you are entitled to apply for the order.
The parents will be the parties to your application and will have a chance to respond to it.
The court will decide the matter based upon the best interests of the child and the Welfare Checklist referred to above.
Step-parents have no formal obligation to maintain a step-child unless that child is a “child of the family”. That means that you must have been responsible for the child and in essence treated the child as your own.
The obligation to maintain a step-child is not an obligation which is automatic nor is it dealt with in the same manner as the obligations to maintain a child are dealt with in relation to a natural parent.
It is rare for the court to have the legal power to deal with normal, standard Child maintenance cases. Those normal, standard cases are dealt with by the legal body called the Child Maintenance Service (CMS). However, the CMS only have the legal jurisdiction to deal with the calculation of child maintenance between natural parents. The CMS has no power to order that a step-parent has to pay child maintenance for a step-child.
The court has some residual jurisdiction to consider the child maintenance in the limited number of non-standard situations. Step-parents paying for their step-children is one of the few aspects of child maintenance still under the jurisdiction of the court.
On divorce it is possible for the parent with care of the step child to apply against the other party to the marriage for child maintenance for a step-child ( the application is based upon the child having been treated as a “child of the family”).
It should be noted that such applications are considered in light of the obligations of the natural parents to maintain that child in the first instance. The step-parent will not take over the obligation and pay instead of the natural parent. The step-parent’s obligations will considered in the light of what the absent natural parent is legally obliged to pay. The step-parent’s maintenance will be as a “top up” to the natural parent’s obligations.
If you anticipate that there is likely to be a claim for child maintenance against you as step-parent then you should seek legal advice as this is not a straight forward CMS child maintenance matter which can be easily resolved using the CMS calculator found on the internet.
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