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What Happens to a Stepchild If a Biological Parent Dies?

| Chris Schmiedeke | ,

Key Takeaways:

  • Stepparents in Texas are not automatically afforded parental rights.
  • Stepparents can argue for and eventually win custody of stepchildren through the courts.
  • A lawyer can help build a case with evidence that supports a stepparent’s custody claim.
  • Courts tend to rule based on the best interests of the child and their well-being.

Blended families are rapidly becoming more and more common across the country. More than 3.8 million children live with step-parents in the U.S., according to 2022 Census data. Losing a parent is tough in any situation, but a child losing their biological parent and a stepparent losing their partner can be particularly difficult to navigate.

Both the legal and practical aspects of this situation are important to consider when a stepparent and stepchild are left behind. At The Law Office of Chris Schmiedeke, P.C., we strive to help people not only navigate the relevant laws and procedures but also help craft a path forward for their families in the aftermath of such a tragic loss. Take a closer look at what happens with a stepchild when the child’s biological parent dies.

What Rights Do Step-Parents Have in Texas?

infant daughter walking with her mother

Stepparents do not have inherent parental rights in Texas regarding visitation or custody. Legally speaking, stepparents are treated the same as interested third parties and must meet certain requirements before being able to even file for visitation. Under the law, there is no guarantee that a stepparent will be granted any custody rights or visitation rights in Texas.

What Legal Rights Do Step-Parents Have If Their Spouse Dies?

If a stepparent’s spouse dies, several factors determine the parental rights of the stepparent. Here are the most relevant factors to keep in mind:

  • The status of the other biological parent
  • The willingness of the other biological parent to provide childcare
  • The existence of any family law orders and who the child’s guardian is
  • The history of the other biological parent, including any record of domestic violence
  • A will or estate planning documents of the deceased biological parent designating the stepparent as the legal guardian
  • The best interests of the child’s life
  • Who the child lived with for at least six months prior to the parent’s death

For more information about how parental rights are determined in Texas, contact one of our family lawyers or take a closer look at the state’s family code.

Can Step-Parents Gain Legal Jurisdiction Over a Child?

Yes, it is possible for stepparents to gain legal jurisdiction over a child, but that is determined by the courts. The courts generally try to rule in favor of the best interests of the child. For a stepparent to gain legal jurisdiction, they must demonstrate that their legal custody would be in the child’s best interests. This is typically easier when the stepchild has a long history of living with the stepparent and being provided for by them.

Am I Still Legally a Step-Parent After My Spouse Died?

Mother consoling her crying daughter

Legally speaking, you are not considered to be a step-parent after your spouse dies. You can apply for child custody, but it must be granted by the courts. How easy that will be depends on who else is vying to be the legal parent and what the best interests of the child are. If you have been heavily involved in your stepchild’s life for several years while their other biological parent had minimal involvement, you will likely have an easier time maintaining your parental rights provided that you get a lawyer to help you navigate the legal process. Remember, stepparents’ rights are not automatic in the state of Texas.

How a Dallas Custody Lawyer Can Help

Navigating the legal system for custody can be incredibly complex, but a Dallas family lawyer can help. They can offer legal advice on how to approach your unique case and insight into what evidence will be most important to gather and present for your circumstances. Plus, a good custody attorney can help meet deadlines and file all the relevant paperwork while answering any legal questions you may have. At The Law Office of Chris Schmiedeke, P.C., we understand just how important a stepparent can be in a stepchild’s life, and we want to help prolong your continued guardianship.

When it comes to making your case to the courts, it typically depends on demonstrating that your custody of the child is what will be best for the child. A lawyer knows what evidence will be necessary to showcase your involvement in your stepchild’s life and how your continued involvement would benefit the child.

Why Clients Partner With the Law Offices of Chris Schmiedeke, P.C.

When you work alongside Chris Schmiedeke, you can benefit from custom solutions designed to work for your unique stepfamily custody case. We understand that every family is different, and that is why our legal team works to understand the unique conditions of your case and fight for your parental rights as a stepparent. Take a look at what some of our previous clients have had to say about our services.


“I had questions. Chris had all of the answers. He is very easy to talk to and I am glad I picked him for initial consultation. I definitely recommend him, especially if you are confused about the process. It is bold to say, but I don’t think you will regret it.” — Liz J.

“If you value peace of mind, hire this law firm. They went above and beyond on my case and I will only work with them if I ever unfortunately have another family law case (fingers crossed I don’t lol). They got my daughter back for me, they got me more out of my suit than I ever thought I could get, they made the entire process as smooth and easy as they possibly could, and they treated me like a relative, someone they genuinely believed was a good father and wanted to help to the full extent of their abilities. This law firm is worth every penny, and I would recommend them to anyone who is needing a family law attorney.” — Brad P.

Frequently Asked Questions

How Can I Protect My Rights as a Step-Parent?

To protect your rights as a stepparent, you will need to invoke your rights as determined by the biological parent or legal orders. This can be done in a multitude of ways, and cases often depend on multiple factors working together. Here are some of the most common methods:

  • A step-parent adoption
  • Their biological parent naming you as their guardian in a will
  • Maintaining a healthy relationship with the remaining biological parent and extended family members like grandparents

Who Does My Step-Child Stay With While Custody is Being Decided?

Your stepchild could stay with you while custody of the child is being decided if you make a request with the family court. Whether your request will be granted depends on how long the child has already lived with you, what their home life was like, and how involved the surviving biological parent is. For example, a child living with their stepparent and their biological parent for years will likely be able to stay with their stepparent in the event that their biological parent passes away. For the most part, initial custody while legal custody is being decided will depend on how involved the stepparent is in the child’s life and the involvement of the other biological parent in the child’s life.

We Help You Step Up For Your Step-Child

We know that the relationship between a stepparent and a stepchild can be just as loving as a relationship between a biological parent and child, and we are here to help you maintain that relationship as a stepparent. At the Law Offices of Chris Schmiedeke, P.C., our experienced team of legal professionals will work with you to devise custom solutions for your unique circumstances that will help fight for your stepparent rights. Give us a call at 214-989-7375 or complete our online contact form to schedule your first step toward legal guardianship.

Chris Schmiedeke


I was born in Dallas and spent the majority of my life here. I moved to Denver in the middle of the first grade and moved back to Plano in the middle of the eleventh grade. I graduated from Plano Senior High in 1984 and then attended Richland College and the University of North Texas where a received a Bachelor of Business Administration. From there I attended the Texas Tech University School of Law and was licensed to practice law in May of 1993. 

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