Do Step-Parents Have Visitation Rights after a Divorce?

Do Step-Parents Have Visitation Rights after a Divorce?

Last updated: February 2008

The following question was submitted to John Roska, an attorney/writer whose weekly newspaper column, "Q&A: The Law," runs in the St. Louis Post-Dispatch (Illinois Edition) and the Champaign News Gazette.

Question

My wife has filed for divorce.  During our marriage, I became very close with her kids from a prior marriage, and they became very attached to me.  My wife says she doesn’t want me to see the kids after our divorce. Do step-parents have any rights?  In particular, can I get any visitation with my former step-children after my divorce?

Answer

Step-parents have some rights, but only if the step-kid’s parent is dead or disabled. While that parent is alive and competent, they control their kids’ lives, and can refuse visitation if they want.

For better or worse, the law assumes that parents know what’s best for their children. Parents get to do things their way, which generally means that outsiders like grandparents and step-parents must butt out. 

Since 1998, the Illinois law on custody and visitation has recognized that strong relationships can develop between step-parents and step-children, and that preserving a close relationship can be healthy. The law therefore permits step-parents to sometimes ask for custody or visitation. 

(It’s worth noting that in 2004 an Illinois Appellate Court said this step-parent visitation law was unconstitutional, and the Illinois Supreme Court declined to review that decision, which suggests that they agreed. Nevertheless, the law’s still on the books.)

The law gives step-parents legal “standing” to ask for custody or visitation. “Standing” means the law recognizes their right to seek custody or visitation. They won’t necessarily get it, but they can ask.

Very few step-parents, however, can even ask for visitation. First, and foremost, a step-parent can only ask for visitation if the child’s parent is “deceased or is disabled and is unable to care for the child.” While the parent is alive, then, they make decisions about who their child can visit.

If a parent dies, however, the surviving step-parent can ask for visitation (or custody) if the following five factors exist:

  • The step-child is at least 12 years old;
  • The step-parent was married to the deceased parent for at least 5 years;
  • The step-parent “was providing for the care, control, and welfare to the child prior to the initiation of the petition for visitation;”
  • The child “wishes to have reasonable visitation with the step-parent;” and
  • If visitation “is in the best interests and welfare of the child.”

It’s pretty clear, then, that only a few step-parents can even ask for visitation. The law seems to be designed for the situation where the natural parent dies while still married to the step-parent, so that the surviving step-parent may be able to preserve the status quo through custody or visitation. 

Unfortunately for you, this law is not designed to provide visitation to a step-parent who divorces their step-kid’s parent. In that situation, with the parent still alive, the step-parent has no legal right to seek visitation. Visitation is then entirely up to the parent.

Helpful Organizations
The following organizations may be able to help you with

For a list of organizations in your area that may be able to help you, enter your zip code.

       

Feedback

We welcome your comments and suggestions

User Survey - Please take a moment to fill out our User Survey to help us to provide better service.

Please do not email legal questions or information about your problem. We will not answer legal questions or provide legal assistance. You can find referrals to legal organizations that may be able to help you by clicking here.