What are my Rights as a Stepparent Going Through a Divorce?

Mackenzie O. Bretz Edmonds Lawyer

Helping to raise your partners children can be a rewarding and fulfilling experience, however, more and more people find themselves in a complicated custody battle regarding a child who is not theirs biologically. The care and kindness you showed your stepchild doesn’t just dissipate after your divorce. Read more if you want to become well versed in your rights and abilities as a stepparent post-divorce.

Legal Parents vs. Non-Parents

The term ‘legal parent’ is used for the children’s biological parents. A biological mother gets the title of legal parent unless or until her parental rights are terminated. A biological father gets the title of legal parent if he is married to the child’s mother at the time of conception or birth, if there is a finding or acknowledgment of paternity, or if he openly holds out the child as his own. This means that a stepparent is not considered a legal parent but is considered a “non-parent” by the court.

The responsibilities that come along with being a legal parent include the care and support of the child, including financial support. Legal parents also have the right to custody and visitation, and generally have the ability to make decisions about the child’s education, medical care, and upbringing. 

The court is less likely to give a non-parent legal custody of a child when the child has at least one fit legal parent. Visitation is possible—but there is a high standard to prove you have a substantial relationship with the child.

A court will consider a legal parent’s parental preference when considering custody or visitation of a stepparent. Parental preference is a term used by the courts to signify that extra weight must be given to the decision of a legal parent regarding who should be able to access their child. However, parental preference can be overruled by the best interest of the child standard. If a court determines that the child will be severely impacted by their inability to have time with someone such as their stepparent, a court can grant visitation or even partial custody rights to the stepparent.

De-Facto Parentage

A de-facto parent is someone that is not a legal parent, but has functioned as a social or psychological parent, nonetheless. A stepparent may seek to petition for de-facto parentage of their stepchild because they believe they are one of the best people to have responsibility and care over that child.

In 2005, Washington state recognized de-facto parentage under law in the case, In re Parentage of L.B. (2005). The court acknowledged de-facto parentage as a better solution to help gap fill the statutory parentage laws. However, the court recognized that proving de-facto parentage was not an easy hill to climb. A person recognized with de-facto parentage status must present significant facts that demonstrate that they undertook a permanent and committed role in the child’s life.

RCW 26.26A.440, effective January 1, 2019, provides a means by which a person can petition for de-facto parentage status regarding a child. To prove de-facto parentage, you must demonstrate factors such as; that you and the child have lived together for an extended period of time, you took care of the child, you didn’t expect financial compensation for your care of the child, you held the child out as your own, you established a bonded and parental relationship with the child, and continuing your relationship with the child is in their best interest.

In a recent Washington case, a stepfather petitioned for de facto parentage of his stepchild. Matter of L.J.M., 15 Wash. App. 2d 588, 476 P.3d 636 (2020). The Court of Appeals held that, the ability of the child’s genetic parent to undertake similar responsibilities, does not weaken a stepparent’s ability to petition for de-facto parentage. The court found that the stepfather had provided health insurance to the child, made him a beneficiary on his life insurance and retirement, maintained a savings account for the child, coached his basketball and football team for the last five years, and regularly attended parent teacher conferences and events. The Court found this to be permanent parental responsibility. 

This means that petitioning for de-facto parentage as a stepparent is possible – but the bar is high.


If you have actively participated in your stepchild’s life from a very young age, or you have been involved in the child’s upbringing for many years, you will be more likely to receive visitation. The judge will try and determine if you and the child have an ongoing and substantial relationship. The law defines this relationship between the non-parent and child as:

  • A relationship that is formed and kept up through interaction, companionship, and mutual interest and affection;
  • A relationship the non-parent does not expect to be paid for;
  • A relationship that has lasted for at least 2 years.

If the child is under two years old, the judge will look for the non-parent’s involvement in the child’s life for at least half the child’s life, with a shared expectation and desire for an ongoing relationship.

Call Us

While Washington state’s law continues to progress around protection for non-legal parents, let an experienced family law attorney at Beresford Booth make sure that you can obtain meaningful visitation with that special child in your life.

To learn more about Your Rights as a Stepparent Going Through a Divorce, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.

BERESFORD BOOTH PLLC has made this content available to the general public for informational purposes only. The information on this site is not intended to convey legal opinions or legal advice.