What happenes in this situation?

[ha98ed14]

Single mom has children from a prior relationship/ marriage. The father is absent from the DC's lives. Mom remarries and has children with her current husband. She dies while all her children are minors. Does her current husband/ kids' step-dad get to just keep the kids from her first marriage? Is the step-dad obligated to search out the absentee bio-dad? Would county social services/ the courts/ DCF even be notified that these children were living with a non-custodial step-parent in the absence of their custodial parent? Is there some legal "trigger" that gets pulled when situations like this happen?

I have knows several families IRL where some version of this played out I always wondered what could/ should have happened legally for the children, but never knew anyone well enough to ask.

One childhood friend I had in a similar situation came to live with her dad after her mom died. Her mom had several kids with different dads. I think my friend got the worst of the deal because her dad was a swinging bachelor. She was really "in his way" and he let her know it. I know she had sisters and was sad that they were separated. I always wondered if one of her sister's dads could have kept her.

[khm]

In the situation I know about, the mom had a daughter from a previous marriage. Mom has custody, dad is involved. Mom marries and has triplets (complete shocker!) and another singleton. Mom dies. Stepdad would like to keep stepdaughter in the home, but he's unable. The girl is not his bio or adopted daughter. Her dad takes custody. Some people close to Stepdad are "sure" that Dad just wants the $ benefits that come with daughter. But, they are admittedly very in Camp-Stepdad. By all accounts, she is ok where she is, although sad about being away from the siblings she loves. Dad does try to allow regular visits with the sibs, but it is hard because Stepdad had to move away to secure childcare (his mom) because he has a job that keeps difficult hours.

I suppose if a Dad does not want the child in a similar situation, he could allow the Stepdad to formally adopt after the death of the custodial parent.

[KrystalS]

Just curious but would it matter if the Mom had a will and said she wanted the child(ren) to be with the stepdad? Especially if the Mom had sole custody and the bio-dad wasn't involved.

[lizajane]

i don't know. it makes me sad to think of it. but i think that you make a good point: it is VERY important to get everything in writing in these situations. if mom can make stepdad a legal guardian, then at least he has some ground to stand on when getting started. and if mom can get dad to sign off on rights, then stepdad can adopt kids and skirt the issue.

this is the sort of thing my sister (an attorney) does for a living and i can't even imagine being witness to the sadness of spliting up a family...

[specialp]

Just curious but would it matter if the Mom had a will and said she wanted the child(ren) to be with the stepdad? Especially if the Mom had sole custody and the bio-dad wasn't involved.

My very limited understanding is that a mom with sole custody could delegate in her will who the legal guardian would be at her death. Now real dad would probably have the same visitation & could callenge the new guardian (but real dad can do that any time, even with mom).

Where there is a stepdad with no parental rights, I think real dad (even if uninvolved) would be the guardian if Mom dies so long as real dad hasn't given up or had his paternity rights taken away. Now, if real dad never comes forward, stepdad would/could start legal action to terminate real dad's paternity.

Again, my very limited understanding.

[ha98ed14]

Where there is a stepdad with no parental rights, I think real dad (even if uninvolved) would be the guardian if Mom dies so long as real dad hasn't given up or had his paternity rights taken away. Now, if real dad never comes forward, stepdad would/could start legal action to terminate real dad's paternity.

I guess this is my real question. How much work does the non-custodial step-dad do to notify the uninvolved bio dad? Can they just go on living as they are and hope bio dad never shows up?

[specialp]

I guess this is my real question. How much work does the non-custodial step-dad do to notify the uninvolved bio dad? Can they just go on living as they are and hope bio dad never shows up?

There are very defined legal procedures in each state for terminating parental rights (and part of that is an effort to contact the "real" parent). An attorney knowledgeable in family law and probate matters in your state would be needed. This happens a lot not just with the situation you have described, but also in adoption proceedings (in some areas) where the adopting parents and birth mother have to go through procedures to terminate the rights of the real dad (who may not be known - a one-night stand, or has abandoned) so that the adopting parents can take legal custody.

I think it's pretty risky to just go on living and hoping real dad doesn't show up. There could be problems later with schools, medical treatment, etc. in addition to all the horrible scenarios you can think of if "real" dad shows up later down the line when DC has lived a life in bliss w/ step-dad (or if step-dad later dies while DC is still a minor).

[Momof3Labs]

I guess this is my real question. How much work does the non-custodial step-dad do to notify the uninvolved bio dad? Can they just go on living as they are and hope bio dad never shows up?

The problem is that legally, the stepdad isn't guardian of the child. Child won't be on stepdad's health insurance. In fact, he can't legally authorize medical treatment for the child. Could come into play with school, also, but I'm not sure. I think that they could go on living that way and hope, but it could become a huge issue at totally the wrong time.

[kransden]

Dad needs a lawyer. I know a family going through this and a lawyer specializing in this sort of situation can quickly and discreetly fix it.

[randomkid]

IMO, this is definitely something that should be addressed while Mom is still living. I don't know, but so much preference is given to bio parents that it seems that even if a Mom's will specifies stepDad to be legal guardian, a bio Dad would probably still "win" custody. If a bio Dad is truly absent and Mom would want stepDad as legal guardian, there should be an effort to sever bio Dad's parental rights and have stepDad legally adopt the kids. This is what my Mom did with my brother. Brother's bio Dad was a complete jerk and wanted nothing to do with my brother. My Dad adopted my brother when my parents married. Brother was 3yo at the time.

[kijip]

The problem is that legally, the stepdad isn't guardian of the child. Child won't be on stepdad's health insurance.

I know lots of step children that are on their step parents insurance at the present time. When I was a child, my older brother was on my dad's insurance and there was no legal adoption. J's insurance forms have a place to add new children on marriage to their parent.

That said, if the bio-dad is as absent as described and is paying no support, the family can and should move to have his rights terminated and the stepdad formally adopt. Preferably of course this would all be done while all are still alive. A family law attorney is needed ASAP.

I don't believe that with CPS being as hard pressed as they tend to be that in the absence of any claims by the bio-dad that they would intervene to take custody of the child.

[Momof3Labs]

I know lots of step children that are on their step parents insurance at the present time. When I was a child, my older brother was on my dad's insurance and there was no legal adoption. J's insurance forms have a place to add new children on marriage to their parent.


My point is that this changes if the bio-mom dies and the stepdad does not have custody of her kids. In all of your examples, the bio-mom is still alive and married to the stepdad.