If my fiancee and his ex-wife adopted a child but are now legally divorced and he was awarded full legal and physical custody, will I become the child’s legal guardian after we marry?

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If my fiancee and his ex-wife adopted a child but are now legally divorced and he was awarded full legal and physical custody, will I become the child’s legal guardian after we marry?

If not, should I seek counsel?

Asked on October 22, 2012 under Family Law, California

Answers:

B.H.F., Member, Texas State Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If the child was legally adopted by your fiancee and his ex-wife, then they are considered the parents and legal guardians of the child.  Your marriage does not give you anymore legal rights over the child than anyother step-parent.  Your husband can leave the child in your care and you can provide all of things that any care giver would otherwise provide (love, care, nurturing, food, discipline).  But... at the end of the day, the big decisions regarding the child must be made the parents. 

If you want to have the same rights as his ex-wife, then you would need to petition the court to change the custody papers and have you named a joint conservator along with your fiancee.  The success of this motion will depend on a change in circumstances.... if you are asking for the change just because you are getting married and would like to have the same rights, then the motion is not likely to be granted.  If you are asking for a change because the ex-wife has done something that makes dad concerned about the mental or physical welfare of the child, then you would have a better chance of getting ex-wife's rights limited, and your rights expanded.


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