I believe in CA (not sure about elsewhere) step parent's do not have visitation rights but anyone can sue for custody if they can prove it's in the child's best interest. You might consider adoption if the mom has little contact, but that would also relieve her of support obligations. You should ask an attorney in the jurisdiction that you live in.

I am the child of the scenario you propose. My mom had full custody of me, bio dad was around, but mostly a drunk. Mom remarried my step dad who raised me and my younger brother as his own along with my two older step brothers. My mom died when I was 16, brother was 15. The months before she died are a blur in my mind except for one conversation in particular; she made me promise to live with my step dad after she was gone.

I don't know much about the legal side of how this works. Thankfully we didn't have to deal with that. My bio dad was smart enough to know that he was totally incapable of raising two teenagers and so he never raised a fuss about us continuing to live with my step dad.

I tend to think that my mom probably knew that my bio dad wouldn't fight for custody of us after she was gone. I also think my mom was pretty confidant that if a judge asked my brother and I who we wanted to live with it would have been my step dad. Not sure what would have happened if my brother or I had a serious medical condition that needed a parental consent. I guess my step dad would have had to track down my biodad to get consent.

Go see a laywer. My own unprofessional gut feeling (I am in S. Cal too) is that you probably would not have much of a legal stand to retain custody but you certainly have a compelling reason for the courts to see the benefits of you keeping custody or at least having your SD have visitation with you and her siblings.

I would have thought that the bio parent could leave intructions in his/her will as to custody of the children. Our wills were to leave custody of our then minor daughter to her godparents (who were not related) as neither set of grandparents nor adult siblings were up to raising a child.

I should have added- if remaining bio parent or grandparent wanted to contest the will they likely could have a shot at it- but the judge could well consider the will of the parent with custody, especially if the custody parent's reasoning (eg- as SP has cared for child in the place of a parent for x years and will remain in the home child has lived in for x years and will continue to attend same school, and so on) is included.

Depends on state -- some states have no statute -- which means SM is out of luck. Some, like Ca., have statute, but the mother may be given the benefit of the doubt. Expecially after Toxell (Supreme Court decision, involving Grand Parents) where Supremes said that courts must hesitate to abridge rights of bioligical parents.

Hopefully your DH is in good health, and none of this matters.

My son's friend married a woman with 2 or 3 kids, can't remember for sure. She died and the fathers claimed their children. They were married several years and the kids were like his own, so he lost his wife and her kids all at one time.

Jonesy,

I am perplexed, you just had another post where you said Stepson should move in with mom and not you.

I agree that there all types of SMs, but I think the problem here is how is the court supposed to decide -- is this a "fair weather SM"? or one there for the count?

I am sorry for your friends loss.

Thanks for all of the replies.
Starr I am so sorry for the loss of your mom. I am thankful that you were able to remain with your Step Dad it sounds like that was best for you and your brother.

I think I will contact our attorney and ask about this and also if it can be stated in a will what happens to SD if he died. it might not hold up in court in the event this did happen but I would think a judge would take into consideration the wishes of the parent w/ full legal and physical custody.After all there is good reason why he has it. It saddens me to hear how little rights step parents do have. it is really scary.
I pray this is never an issue...

Read some of the other threads, like the ones re adult stepchildren, and stepmoms not wanting them back home. I would hope a judge would take that sentiment into account too, that as children get older, SMs may not be so accomodating.

In any event, I hope this is never an issue.

kkny that was entirely unnecessary... this is obviously not an issue for the op or even relevant to the question at hand ...

Momof4,

The issue is how difficult it would be for a judge, and I think the type of sentiment he/she must take into account. I think a judge has to take into account the entire spectrum.

I have no idea what can hapen or if you have any rights at all, but you're not the only one. This issue is one that worries me a lot too. I have bad dreams about it on a regular basis.
I haven't told my whole story here yet, but here it goes...

My BF, J__, has an eight year old son, A__. However, A__ is not actually J__'s biological child. J__ met and began dating BM when A__ was less than a month old. They were together for almost three years.
A__ is the result of a very rebellious late-teen phase where BM was mixed up with a very unsavory crowd. The guy who provided the gametes (I can't bring myself to call him any derivative of 'father', much less 'dad') was in and out of jail, refused to acknowledge her pregnancy, and so on. Since he was such a swell guy, she decided to say "Father Unknown" on A__'s birth certificate.
Gamete Guy's mother asked if she could spend some time with A__, and BM said ok. That kept up for a few years, but Gamete Guy has never met A__.
J__ became involved with BM and took the father role for A__. A__ calls him Dad and J__ has always been there. BM stopped letting Gamete Guy's mother see A__ because he came home when he was about 4 or 5, sobbing and crying. She had told poor A__ that J__ didn't love him because he wasn't his dad (what an awful thing to do!)...

J__ and BM never married, but talked about J__ adopting A__.
The reason they decided not to: A__ is part Aboriginal and we are Canadian. Around the time that they were talking about it, a very similar case showed up in the news: Father was Aboriginal, Mother was Caucasian. Father had never met Child and wasn't on the birth certificate, but knew of Child's existence. Adoptive Father came along. Mother died, leaving custody with Adoptive Father. Father and his family sued for full custody AND child support from Adoptive Father, citing important cultural beliefs that Child should be with them, even though they couldn't afford it. They won.
J__ and BM didn't want this to happen to J__. So they decided to leave A__'s guardianship with BM's mother and keep J__'s involvement a handshake deal. They didn't want J__ to wind up paying child support to a bunch of strangers if something ever happened to BM. They also thought BM's mother would have a better chance in court if it ever came to it, since she is genetically related to A__. GM would definitely let J__ have access to A__, but I doubt Gamete Guy's family would.

This whole situation has both ups and downs for us.
Ups: I have past precedent to show me that J__ doesn't walk away from his responsibilities. BM has no legal chain to yank J__ around by. J__ has no set child support for A__, he buys things as A__ needs them, and that gives him peace of mind that she's not sponging off of him.
Downs: J__ has no legal custody of A__. If something happened to BM, he has no rights at all and that scares the crap out of me! BM has shown that she puts A__'s welfare above any petty differences with J__, but if she ever wanted to, she could take A__ away from us entirely, and that also scares me and leaves me feeling as if I'm walking on eggshells. AFAIK, A__ is aware that he has another father that he has never met, but I'm not sure if he really comprehends it all - I'm concerned that when he actually understands what that means, he'll be upset with J__ and resentful that J__ didn't adopt him, even though he has chosen to be his dad without the paperwork.

So, I have no idea what you could do (if anything) but you're not alone in these fears!

I agree with mom of 4. That sentiment is really irrelevant. If that was the sentiment of the step parent towards the child, then I would assume that the step parent would welcome the bio parent coming to pick up the step child after their husband/wife had died. They certainly wouldn't go through a lengthy, and probably expensive, court battle if there wasn't a serious commitment to this child. Any judge with any common sense should be able to recognize that.

Be very careful about giving each other advice on this question. It's a question of law, which varies greatly by jurisdiction. Even when we know the story of someone else in the same jurisdiction, the facts may vary or the law may have changed. Relying on anecdotal advice or "what makes sense" is very dangerous. The OP and anyone else with similar questions needs to ask a lawyer who practices domestic/family law in his/her jurisdiction. S/he will know if and how it is possible to effectuate this family's desires.

I know that in Louisiana, there is a presumption that the bio parent would always get custody, over the stepparent or grandparent ( or anyone else) unless there is a very strong and very clear reason that such a decision would be deletrious to the children.

Guess you have to check your state.

That being said, I would think an older teen would have a lot of ability to say which living situation they would prefer. Judges usually know its pointless to try to force a teen into a situation they dont agree to.