Stepparents may enjoy status as the psychological parent, or in loco parentis. For example, in Lyles v. Jackson, the court found that the step-father and children’s mother had purchased a trailer home, where they lived with her four children. The step-father did not adopt the children, though he held the children out as members of his own family and engaged in parental functions. Therefore, the court held that the step-father was in loco parentis.

   In that same vein, a stepparent may decide to adopt his or her stepchild. The process for stepparent adoption has been addressed in a few blog posts on the Smith Strong, PLC website. The following information is actually from a blog post on my firm’s website, titled What is the Process for Obtaining A Stepparent Adoption in Virginia?

The Adoption Process

To initiate the stepparent adoption process, counsel should first determine what sort of relationship exists between the child and the child’s other biological parent. This nature of the relationship matters because it will affect the process. For example, the biological parent may be consent to the adoption and terminate his or her own parental rights if he or she has been absent from the child’s life for an extended period of time. The parent’s consent would make the adoption process fairly simple.  

By contrast, the whereabouts of the biological parent may be unknown or the biological parent might refuse to consent to the adoption, which would make the process significantly more complicated. Where the biological parent refuses to consent or his location is unknown, then the stepparent is required to obtain a court order to waive the consent requirement. At the adoption hearing, the stepparent will need to present evidence to show that a he made a good faith effort to obtain the biological parent’s consent and that the biological parent abandoned all parental responsibilities to the child.

In deciding whether to terminate the biological parent’s rights and permit the adoption, the court will consider multiple factors, including: “the efforts of the biological parent to obtain or maintain legal and physical custody of the child”; “whether the biological parent is currently ready and able to assume custody of the child”; “whether the biological parent’s efforts to assert parental rights were thwarted by other people”; “the biological parent’s ability to care for the child”; “the age of the child”; “the quality of any previous relationship between the biological parent and the child”; “the quality of any relationship between the biological parent and any other children”; “the duration and suitability of the child’s present custodial environment, and finally;” and “the effect of a change of the custody on the child.”

Psychological Parents (in loco parentis)

Under the theory of in loco parentis, one who knowingly and voluntarily assumes the role of parent to a child may seek legally recognizable rights and obligations. These rights and obligations last only as long as the parent-child relationship exists.

In Surles v. Mayer, the Court of Appeals found that an individual who acted as a child’s surrogate father for nearly four years was the “functional equivalent” of a former stepparent. The court found that the child resided in the home with the individual for nearly three years, throughout which he maintained a relationship with the child’s mother that was analogous to marriage, and conceived the child’s half-sibling.  Thus, the court held that the individual qualified as a person with a legitimate interest in the child as defined in Virginia Code § 20-124.1 (i.e. psychological parent).  

By contrast, in Damon v. York, the Court of Appeals found that an individual did not have in loco parentis status. In that case, the girlfriend of the child’s mother, who married the child’s mother in Canada when same-sex marriage was not recognized in Virginia, and lived with the child for twenty-one months was not the “functional equivalent” of the child’s stepparent. The girlfriend and child had a “friendly” relationship that was not “particularly unique.” Thus, the court held that the girlfriend was not a “person with legitimate interest” to seek visitation under Va. Code § 124.1.

In Hawkins v. Grese, the court held that a woman who had acted as a parent of a child for years was not considered a parent for joint legal custody purposes. Two women were in a same-sex relationship, but never married. In 2007, one party became pregnant and had a son. The son was raised by both women in the partnership and lived with them both until the parties separated in 2014. The biological mother petitioned the court to prevent the other partner from seeing her son, despite having raised him for years as her own.

Special thanks to Mallory Brennan for editorial and writing assistance with this article.
H. Van Smith
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