California has worked, 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 stepparents’ rights and the jurisdiction and discretion of trial courts when considering visitation requests from stepparents.
A. Legal Authority for Stepparent 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 the stepparent’s visitation is in the best interest of the child;
(b) That if a domestic violence protection order was issued against a stepparent, the court SHALL consider whether that would adversely affect the application;
c) Visitation rights of step-parents that would conflict with the custody or visitation rights of a non-party biological parent CANNOT be ordered.
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 provides that if mediation does not result in an agreement regarding a stepparent’s request for visitation with a stepchild, the mediator shall inform the court, and the court SHALL schedule the matter for a long-standing cause hearing on the unresolved issues.
B. Appeals Court Decisions Limiting Trial Court Jurisdiction and Discretion in Stepparent Visitation Requests:
1. The key item to remember is that California statute ONLY addresses a stepparent’s right to reasonable “visitation” with a stepchild.
2. California’s stepparent visitation statute does NOT give “jurisdiction” to a trial court to grant a stepparent “custody” rights 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. In addition, both the US Supreme Court and the California Court of Appeals have, in recent decisions, severely limited the “discretion” of a trial court in ruling on a stepparent’s request for visitation , where the natural father, the biological father and/or the parents oppose the application. 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 demonstration of incapacity by the parents of a child, there is a presumption that the able-bodied parents are acting in the best interest of their children and, when a parent’s decision is judicially challenged, the court of first instance MUST render the parent’s decision.”special weight”; Y
(3) That as long as a parent provides adequate care for their children, the Due Process Clause does not allow a state to infringe on the fundamental rights of parents to make child-rearing decisions simply because a state judge believes it could be made a “better decision”. become” than a parent’s decision 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) Citing with approval the case Toxel v. Granville decision; Y
(2) ruled that the trial court, which granted a stepparent continued visitation with his stepson, over the objection of the child’s birth parents, UNCONSTITUTIONALLY applied Family Code Section 3101 in that case, as the The record did not reveal that the trial court gave “special weight” to the parental objections, and the objecting parents were not shown to be unfit parents.
(a) the stepfather had been with the child’s biological mother since the stepson was very young;
(b) the stepfather, after the divorce from the biological mother, 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 welfare” of the stepson to continue having visitation with the stepfather.