Law & Policy FAQ

Links below will open a new page or lead to an answer on this page.

LEGAL QUESTIONS

FINANCIAL QUESTIONS

SPECIAL QUESTIONS

Q: How do I find an attorney who knows stepfamily law?

Not every issue of a legal nature will require the assistance of a lawyer. However, when you feel that a situation presents legal matters that you are uncomfortable handling yourself, you may want to seek the advice of an attorney. For issues involving stepfamilies, you will want to obtain a lawyer who specializes in family law. Certain states require certification for a lawyer to be considered a "specialist." For a list of national and state organizations that certify lawyers in particular specialties, access http://www.abanet.org/legalservices/specialization/home.html. In other states, there may not be an official certification, but lawyers still may specialize in a particular field, they are just not regulated by a state licensing agency. Hiring a specialist does not necessarily cost more than hiring an attorney who has a general practice.

An initial search for a family lawyer may generate dozens of possibilities. As a starting point, you may want to ask friends, relatives, or colleagues to recommend an attorney with whom they are familiar and specializes in family law. Many communities may also offer referral services. For a list of 300 lawyer referral services across the country, visit http://www.abanet.org/legalservices/lris/directory.html. Bar associations in most communities also make referrals and assist clients in finding a lawyer in a particular field. For a listing of all state and major local bar associations that are Internet accessible, see http://www.abanet.org/barserv/stlobar.html.

The local phonebook will also have contact information for nearby bar associations as well as advertisements for individual lawyers in your community. However, as with any form of advertising, read the content critically. An advertisement claiming a lawyer handles cases involving accidents, family matters, wills, and criminal cases is probably not a specialist in family law.

No matter how you locate a potential attorney, make sure to choose one with whom you feel comfortable. The lawyer will be helping you solve your problems, so you must feel secure enough to tell your lawyer, honestly and completely, all the facts necessary to resolve your problem. Most lawyers will meet with you briefly for what is called an initial consultation. This allows you to talk with your prospective lawyer about your case before making a final hiring decision. In many cases, there is no fee charged for an initial consultation. However, when making an appointment for a consultation, be sure to clarify whether or not you will be charged for the initial meeting.

Q: Can a stepparent give consent for a stepchild's medical care?

Stepparents often have questions concerning their right to consent, or refuse to consent, to medical care for a stepchild. A parent or guardian of a minor child (under age eighteen in most states) is generally required to give informed consent for most medical decisions on behalf of that child. However, stepparents generally do not have the authority to give legal consent to medical treatment for a stepchild, unless the stepparent has legally adopted the child or been designated a legal guardian. A child's parents or legal guardians may sign a statement authorizing a third party to consent to medical care. A copy of the authorization signed by the parents or legal guardian should be retained with the child's medical records.

Without a consent statement, minors requiring emergency services for alleviation of severe pain, or immediate diagnosis and treatment may still receive treatment. In situations where failure to make an immediate diagnosis and begin treatment would lead to serious disability or death, the child will generally be treated even if the parent, guardian or other person authorized to consent cannot be contacted. In these emergencies, consent is "presumed," since the child would otherwise suffer injuries that could have been prevented.

Even though in most states stepparents lack the legal authority to give consent for medical treatment on behalf of their minor stepchildren, there is a general obligation on the stepparent to obtain necessary medical care for the child. Given this fact, it is certainly a good idea to have a statement signed by a parent authorizing the stepparent to make medical decisions on behalf of the child for instances which may not be classified as an emergency, but for which the child should receive medical attention.

The rights and responsibilities of stepparents vary state to state, so consult your local law for the most accurate information. Very few states have statutes that allow stepparents to consent to medical care and their authority consent may only be effective if efforts to notify the biological or adoptive parent have been unsuccessful.

Can stepchildren inherit from a stepparent?

When a stepparent dies it may raise significant issues relating to the stepchildren's inheritance rights. An important consideration is whether the stepparent had a will or died intestate, without a will.

Wills. Under the law of wills, adults may make a testamentary gift to anyone they desire, including stepchildren. However, problems arise when there is ambiguity regarding intent to provide for step-relatives and the courts must then interpret the language of the will. In such situations, the courts are prone to follow traditional schemes of inheritance based on blood relations. For example, a class gift made to the testator's "children," probably would not be interpreted to include stepchildren. When stepparents are preparing a will, they should make sure that their attorney understands the relationships involved.

Intestate succession. If the stepparent dies intestate (without a will), their stepchildren generally will not inherit, because the intestacy laws of most states generally limit inheritance to those related by blood or adoption.

Statutes that do allow for inheritance by stepchildren are quite limited in scope. Inheritance may be dependent upon the length of the relationship and the reliance of the stepchild on financial support from the deceased. For example, stepchildren are beginning to be afforded some, although very limited, rights under intestate statutes as evidenced by the modification of California Probate Code ยง 6454, to provide the following:

For the purpose of determining intestate succession by a person or the person's issue from or through a foster parent or stepparent, the relationship of parent and child exists between that person and the person's foster parent or stepparent if both of the following requirements are satisfied:

Stepchildren who meet these types of stringent requirements are surely the minority. Therefore, the best option for one wishing to provide a testamentary gift to a stepchild is clearly to have a clear and unambiguous will drafted, making specific gifts to named beneficiaries.

Should children change their last names to their custodial stepparents' name?

There are several issues the child might want to consider:
Relation with other parent: A name change could be a sensitive issue for the noncustodial parent (assuming the child now has that parent's last name). You or the child might want to determine how the noncustodial parent would feel about a name change, to make sure that changing the name will not damage the parent-child relationship or raise co-parenting conflicts.

Why does the child want the name change: Does the child want to legally change her name or just use the stepparent's name occasionally? Does the child's school allow the child to use a name that is different from the legal name, if school is the main issue?

Legal name change: If the child wants a legal name change, then in general there are two ways to accomplish this (the law varies from state to state). Generally a person can change his or her name legally by simply consistently using the new name, assuming that the person had no fraudulent purpose in the name change. This is the common law approach.

A number of people who want to change their name, however, follow whatever statutory procedure the state has for a name change (below). This has the advantage that you then have an official document that says what your new name is, making it easier to change driver's licenses, school records, and so forth. Usually the procedure is simple - just filling out a form in the office of the clerk of court, and following whatever additional procedures are required. For a minor's name change, the consent of a parent, and possibly both parents, would be required. If it is, and one parent refuses, then getting the name changed over the other parent's objection might require a court proceeding, which would be much more complex. Legal counsel would probably be necessary and the matter could be expensive, and might be emotionally draining for all concerned. Before proceeding the family should weigh the costs and benefits, keeping in mind that when the child becomes an adult (usually age 18), the name could be changed without parental consent.

What's involved in a statutory name change? A name change action is a civil action authorized by state law. The specific law and governing process varies from state to state but typically begins by filing a petition with your county court. Different names for such courts may include circuit, district, supreme, or superior court.

In the case of a minor child, the action must be brought on behalf of the child by a parent or legal guardian. The petitioner and the child must reside in the state and county where the action is filed. Filing fee amounts also vary, but must be paid before the action can be filed.

Typically notice must be given to or served upon an interested party, which in this case is likely to be the non-petitioning biological parent. Such notice is required because the non-petitioning parent has an interest in the minor child which is protected as a matter of law, and, therefore, has the right to be heard in court regarded the potential change. Each state has specific requirements regarding when and how notice must be given for particular types of legal actions. Sometimes notice may be given by certified mail with a return receipt requested. When the whereabouts of the person to be notified are unknown, it may be possible to give notice by publication in a general circulation newspaper.

There are three different standards used by the courts to determine whether to grant a petition for name change. First is the familiar "best interest" standard, where the judge determines whether the change will be in the best interest of the child. The second standard is quite similar except certain guiding factors are considered in each case to determine "best interest". These factors fall generally under the following categories:

The third standard is called the "custodial deference" standard. Here the court assumes that the child's custodian is acting in the best interest of the child in seeking the name change and will likely grant the petition based on this assumption, unless the non-custodial parent demonstrates otherwise.

Keep in mind that states vary in the process and standards used for name changes. Contact your local court clerk to find out specific information. Also, remember that a legal name change is only that. It does not entitle the stepparent whose name the child takes to any special rights or responsibilities. In addition, name changes need not be legal to accomplish a desired result. Parents may be able to simply begin employing the change in normal usage, such as in the child's school, sports associations, and so forth. This results in a change for all but the most strictly legal purposes.

Before changing your child's name consider the reasons, effect, and consequences of the child's name change and make your decision based solely on the interest of the child.

Share |