Child Custody

Rights of stepfathers and stepmothers

Stepfathers and stepmothers may, since 2015, in certain circumstances, have parental responsibility regarding their husband, wife or partner’s child.

These changes have been causing some controversy in the academic and judicial circles since many are those who understand that it should be the grandparents – and not the stepfather or stepmother – to exercise parental responsibilities.

We believe that is positive that the law now allows that a stepfather or stepmother can exercise parental responsibilities. Regarding the order of preference established, as we will see below, we cannot fail to express some reservations as to the choices of legislator. But let us see the what the 2015 law brought.

The new rights of stepfathers and stepmothers after the law of 2015

If neither parent can exercise parental responsibilities (whether due to absence, disability, death, or another impediment), this exercise will preferably be the responsibility of the impeded father’s husband/wife or partner, and only in the absence of these, to some other family member. In the event of the death of the parents, the court should, however, consider, a potential will designating a guardian for the children

t should be noted, therefore, that an orphan child will preferably be left in the care of his stepfather or stepmother and not, for example, his grandparents. These, in fact, appear only in second place in the preferences of our legislator who decided to privilege the marriage relationship and non-marital relationship over blood ties.

In our view, this is a controversial solution and one that should have been given greater consideration.
In fact, we believe that the law could have only provide for the possibility that stepfathers or stepmothers could hold parental responsibilities, alongside other family members, but refraining from establishing any order of preference. It would be then up to the court, analyzing each case, to decide whether the child should be handed over to the stepfather/stepmother or other family member.

Finally, the law added a new article to the Civil Code that establishes that, in cases where a minor’s affiliation is established only for one of the parents, at the request of this and his spouse or non-marital relationship partner, parental responsibilities may be assigned to them together.

In these cases, and in the event of a divorce, the regulation of parental responsibilities will be carried out in the exact same terms as foreseen for the parents. Thus, the stepfather/stepmother can continue to exercise parental responsibilities over the child, even after divorce or separation, in which case a custody arrangement shall be agreed upon or decided by court, along with child maintenance.

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