California has made efforts, by law, to recognize the right of stepparents to have visitation rights with their stepchildren. However, several recent court decisions have severely limited the scope of stepparent rights and the jurisdiction and discretion of trial courts in considering stepparent visitation requests.
A. Legal Authority for Step-Parent Visitation Rights in California:
1. Family Code, Section 3101 provides that:
(a) A court may grant reasonable “visitation” to a stepparent, if it is determined that visitation by the stepparent is in the best interest of the child;
(b) That if a domestic violence protection order was issued against a stepparent, the court MUST consider whether that negatively affects the application;
c) You CANNOT order step-parent visitation rights that would conflict with a non-party birth parent’s right of custody or visitation.
2. Family Code Section 3176(a) provides that if a stepparent’s request to visit a stepchild is “contested,” the matter may be referred to mediation; Y
3. Family Code Section 3185 states that if mediation does not result in an agreement regarding the stepparent’s request for visitation with a stepchild, the mediator shall notify the court, and the court MUST schedule the matter for a long cause hearing on unresolved issues.
B. Decisions of the Court of Appeals that limit the jurisdiction and discretion of the Court of First Instance in requests for visits from step-parents:
1. The key thing to remember is that California statute ONLY addresses a stepparent’s right to reasonable “visitation” with a stepchild.
2. The California stepparent visitation statute does NOT confer “jurisdiction” on a trial court to award “custodial” rights to a stepparent or stepmother to a stepchild in an action brought under California Family Law Law . This point was made clear in the case of In re the Marriage of Lewis & Goetz (1988) 203 Cal App 3d 514.
3. Additionally, both the US Supreme Court and the California Court of Appeals have, in recent decisions, severely limited a trial court’s “discretion” in ruling on a stepparent’s request for visitation , where the natural father, the biological father and/or the parents OPPOSE the request. Specifically:
a) In the case of Toxelv. Granville (2000) 530 US 57, the United States Supreme Court, in striking down a Washington statute, held:
(1) That the Due Process Clause of the Constitution grants parents the fundamental right to raise their children and to make decisions about the care, custody, and control of their children;
(2) That, in the absence of a showing of incapacity of a child’s parents, there is a presumption that fit parents are acting in the best interests of their children and, where a parent’s decision is challenged in court, the court of first instance MUST dictate the father’s decision. “special weight”; Y
(3) That as long as a parent adequately cares for their children, the Due Process Clause does not allow a state to violate a parent’s fundamental rights to make child-rearing decisions simply because a state judge believes “it could be make a better decision.” be done” than decision of parent made;
(b) In the recent California Court of Appeals case of In re the Marriage of W (2003) 114 Cal App 4th 68, the Court:
(1) Approvingly cited the case Toxel v. Granville decision; Y
(2) ruled that the trial court, which granted a stepfather continued visitation with his stepson, despite the objection of the child’s biological parents, UNCONSTITUTIONALLY applied Family Code Section 3101 in that case, since the stepfather The record did not reveal that the trial court gave “special weight” to the parents’ objections, and it was not shown that the objecting parents were unfit parents.
(a) the stepfather had been with the child’s biological mother since the stepson was very young;
(b) the stepfather, after the biological mother’s divorce, had been exercising regular visits with the stepson, who referred to him as “Dad”;
(c) the trial court had referred the case to a Child Custody Evaluator who advised that it was in the “best interest and well-being” of the stepson to continue having visits with the stepfather.