When you marry someone who has a biological or adoptive child from a previous relationship, you become a stepparent of that child. This is not a legal parental relationship, however. In order to become a legal parent of your spouse’s child, you need to adopt the child through a Stepparent Adoption (discussed below).

Despite your lack of legal-parent status, however, you may nevertheless possess certain rights as a stepparent. What are a stepparent’s rights in PA?

Stepparent Rights to Adopt

Pennsylvania law allows anyone—including single individuals, same-sex couples, and unmarried heterosexual couples—to adopt a child. A stepparent’s rights, therefore, include the right to adopt a spouse’s child, as long as certain requirements are complied with.

Stepparent Adoption

Generally, the parental rights of both a child’s biological parents must be terminated before someone may adopt the child. For example, when a couple wishes to adopt a child, and the child is not the biological child of either individual, the parental rights of the child’s biological parents must be terminated before the adoption can proceed.

An exception to this rule is made when a stepparent wishes to adopt the child of his or her spouse. If the stepparent’s spouse is one of the child’s biological parents, the general rule would have required the biological parent/spouse to terminate his or her parental rights before the stepparent could adopt. With the aim of protecting the sanctity and stability of the new family unit (i.e., the unit consisting of biological parent, stepparent, and child), PA law relieves the biological parent/spouse of this requirement in the case of a Stepparent Adoption. The parental rights of the other biological parent must still be terminated, however, before the adoption can take place.

Second-parent Adoption

Under Pennsylvania law, marriage can occur only between one man and one woman. Because the definition of a stepparent is the spouse of the parent of someone else’s child, neither member of a same-sex couple can be considered a stepparent in Pennsylvania.

Under the adoption rules discussed above, if one member of a same-sex couple was the biological parent of a child, the other member of that couple could not adopt the child unless the biological parent terminated his or her parental rights. In other words, one member of the same-sex couple (the biological parent) would have to terminate his parental rights before the other member of the couple could adopt the child. This was the law in Pennsylvania prior to 2002.

But in 2002, the Pennsylvania Supreme Court granted courts the right to allow what is known as Second-parent Adoption by a same-sex partner without the termination of the other partner’s parental rights. As is true with respect to any adoption, the adoption process must be followed precisely in order to achieve a legal parent-child relationship between the second parent and the adopted child. Without a properly executed Second-parent Adoption, the non-legal parent has no responsibilities or rights with respect to the child.

An Adoptive Parent’s Right to Custody

In Pennsylvania, if you adopt your spouse’s child after you marry, as described above, your rights and responsibilities with respect to that child will be the same as those of a biological parent. If you divorce, you will have the same rights to seek custody and child support, for example, as the child’s biological parent.

As PA courts award custody only after determining that such an award is in the best interests of the child, you as well as the biological parent will need to present evidence of the child’s best interests to the court. For a list of the criteria Pennsylvania courts are required to consider in awarding child custody, see The 15-plus Standards for Awarding Child Custody in Pennsylvania.

A Stepparent’s Right to Custody

Unless another form of parentage can be established (through the doctrine of in loco parentis, as discussed below), a non-legal parent, such as a stepparent, possesses no rights or responsibilities with respect to a child. This is true both during marriage and after divorce.

If a marriage ends and the stepparent is the higher wage earner, for example, the child is not entitled to the stepparent’s support. If the stepparent dies, the child cannot inherit from him. In short, the non-adoptive parent (i.e., stepparent) has absolutely no rights or responsibilities with regard to a child either during or after the relationship ends.

When the marriage falls apart, the non-adoptive parent may not even be entitled to visit the child he spent years helping to raise, let alone share in his custody. This harsh result can be avoided, however, if an alternate form of parentage can be established. In Pennsylvania, this is accomplished through what is known as the doctrine of in loco parentis.

In Loco Parentis

The term in loco parentis means that a person has acted “in the position of a parent.” Under Pennsylvania law, a stepparent stands in loco parentis to a child when the stepparent, with the consent of the biological parent (i.e., the stepparent’s spouse), assumes the responsibilities of a parental relationship without going through the formality of a legal adoption.

Whether these requirements have been satisfied depends upon the particular facts of an individual case. If you succeed in establishing that you acted in the position of a parent during your marriage, you will be entitled to seek custody or visitation just as a biological or adoptive parent may.

The Best Interests of the Child

But, just as is true of a biological or adoptive parent, you will also need to establish that such custody is in the best interests of the child before you will be granted custody.  If you can demonstrate that you and your stepchild had a close and loving relationship during your marriage, a court may very well find that the continuation of that relationship is beneficial to your stepchild’s well-being.

In making its custody determination, the court will not give preference to biological or adoptive parents over those standing in loco parentis. The court will consider all relevant factors, and will always award custody on the basis of a child’s best interest, even if the award results in denying custody to the child’s biological or adoptive parents. In other words, the court will consider the same 15-plus factors it must consider in making any other custody determination.

A Stepparent’s Obligations

A stepparent may have not only rights with respect to a stepchild, as described above, but obligations, as well. All legal parents of a child are required to support that child. Because stepparents are not legal parents, the law generally does not require them to support their stepchildren.

There are exceptions to this general rule, however. If a stepparent has acted as a child’s parent (i.e., has acted in loco parentis with respect to the child, as described above), the courts may find that the stepparent is obligated to support the child just as he would be if he were a biological or adoptive parent.

This obligation is imposed upon a stepparent (or other non-legal parent) who stands in loco parentis to a child, through the doctrine of paternity by estoppel. In other words, if a stepparent has acted as and has assumed the responsibilities of a parent during the marriage, he may be estopped (i.e., prevented) from avoiding child support obligations, for instance, after the marriage has ended.

Courts Consider the Specific Circumstances of Each Case

As stated above, the courts will look to the specific circumstances surrounding the relationship between a stepparent and child in determining both a stepparent’s rights and obligations with respect to that child. The decisions and steps you take should be carefully weighed and are important enough to require the assistance of an attorney experienced and knowledgeable in stepparent law.