Understanding Your Rights as a Step-Parent Post-Divorce

Troxel v. Granville was a court case that set a legal precedent in the United States regarding the rights of parents versus non-parents—such as stepparents—when it comes to making decisions about children’s lives. In the case, two grandparents sought visitation rights with their grandchildren, despite the objections of the children’s mother. The Supreme Court ruled in favor of the mother and established that parents have full authority to make decisions about their children’s lives unless there is clear evidence that those decisions are not in their best interest.

This case solidifed the doctrine Illinois still follows, called the Superior Rights Doctrine. Basically, it says that the biological parent(s) of a child have a superior right decide who their child spends time with and can restrict a child from seeing other people if they choose to. In re Parentage of Scarlett Z.-D., 2015 IL 117904

What does this mean for stepparents in Illinois? It means that after a divorce, a step-parent will no longer be able to make decisions about their former step-child’s life without express permission from the child’s biological parent or legal guardian(s). This includes deciding how much time a child spends with their former step-parent or if they will continue to have any kind of relationship at all after the divorce is finalized. In other words, even if you were very close to your former step-child before the divorce and would like to continue seeing them afterwards, you may not be able to do so unless both biological parents agree on it (or unless you obtain a court order – which is going to cost you a TON of money).

Similarly, if you believe there is clear evidence that continuing contact between you and your former stepchild would be in their best interest—even if one or both biological parents disagree—you may seek out legal advice on how to obtain guardianship or custody of your former step-child/step-children. Ultimately though, absent obtaining court orders granting guardianship/parenting rights over your former step-children, it will likely remain up to their biological parent(s) whether they will maintain any kind of relationship with you post-divorce. Having worked on several non-parent cases, including one of the biggest ones in Illinois, the legal fees are steep and the chances small. I know because I helped define the procedure which a non-parent must go through to have a hearing on whether or not they should have their former step-child in their life.

The Troxel v Granville decision made by the Supreme Court sets an important precedent when it comes to understanding what rights stepparents have after divorcing from their spouse and leaving behind any shared minor children. While every situation will ultimately depend on its own unique circumstances and facts on record, generally speaking parental authority trumps nonparental authority when it comes down to making decisions about minor children’s lives and relationships post-divorce — meaning that absent any court orders granting parenting time over your former step-children (or permission from both sets of biological parents), maintaining contact with them may not always be possible after divorcing from their other parent(s).

I have a considerable body of experience with non-parent cases, and have added time for former stepparents to parenting plans in agreed divorces. If you and your soon-to-be-ex can agree that you will have some of their time, I can add it in. If you want to discuss whether that is possible, reach out to my office or call me. Even if its not possible to add it in, if you are your soon-to-be-ex are in agreement, let me take the hassle out of getting divorced.