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As a Step dad, what rights do i have to my step children, in case my wife dies?

Santa Ana, CA |


I am a step dad to one son and one daughter, aged 4 and 5

I would like to find out what rights do i have to my step children, in case my wife dies?

My wife and her ex-husband both have joint legal custody of the kids. This stemmed from a divorce 3 years ago. We live in california and the ex-husband lives out of state. The kids have not seen their biological father for 3 years.

The kids live with my wife and I, and we pay for all of their expenses. My wife and i make a very good income and we own our own home. In contrast, the kids bio dad has never made any court ordered payments to my wife in order to support the children, even though the government has been after him for years to do so.

My wife and her ex have an amicable relationship. he will call on occasion to talk to the kids.

finally, for what it is worth, the kids bio dad has been in and out of prison many times for non-violent crimes. His employment history is almost non-existent, and he has no money to support the kids. in addition, the bio dad still owes child support to my wife. My wife has had to raise them on her own, and pay for all of the kids upbringing.

My understanding is that step parents have few legal rights to their step children. So i am concerned about my rights if she were to go home to the Lord.

So what are my options now? What are my options if my wife were to pass on?

Does the fact that the bio dad has poor income, very little employment history, owes child support, and has a long prison history matter to the courts?

For comparison, I make $50K a year. I own my own home. I have never been arrested and have no prison history. i have been paying for the kids upbringing for 2 years.

thanks for your help!

jim f.

has an ex-husband, who legally has joint custody to the boys.

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Attorney answers 2


Hi Jim,

Have you considered adopting the kids? It would sure make everyone's life easier =)

As a step-parent, you are correct in that your rights are seemingly few. However, what you do have on your side is time, place (the kids are with you) and a bonded relationship these kids. If Mom were to suddenly pass, you could Petition for guardianship of them, and depending on their ages, you might just get it. Lets hope we don't need to find out for a very long time.


In California, the biological father will have priority, but with the facts you describe, you would at least have a chance of becoming the childrens' guardian. At the very least, you need to have your wife nominate you as the kids guardian of the person and estate in a written document, and have the document notarized.

Kevin L. Von Tungeln*
Thompson Von Tungeln, A P.C.
Attorney at Law
857 West Lancaster Boulevard
Lancaster, CA 93534-2348
Telephone: (661) 945-5868
Telecopier: (661) 723-7089

*Certified Specialist - Estate Planning, Trust and Probate Law
The State Bar of California Board of Legal Specialization

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