Stepparents and California Family Law: Issues and Pointers
by Michael C. Peterson, Esq.
Introduction and Personal Bias: Best Interests of Kids!
Current statistics declare that more than half of all Americans today have
been, presently are, or will one day be members of one or more step-families
during the course of their lifetimes. Remember the "nuclear family"
language of your youth? The new paradigm is the "bi-nuclear"
family. Thirty-five percent of children will live in one by age 18, and
half of all remarriages that occur each year in the U.S. are remarriages.
These numbers are only increasing.
Yet, this is a volatile topic where divorce and the law are considered,
because stepparent's rights remain persistently limited for a number
of historic and emotional reasons. As with so many other areas of family
law, our society is in such deep and rapid transition while the law limps
along to keep up and the wisdom of mental health professionals often is
not incorporated into the framework of our family codes or in the minds
of many of the bench officers who decide matters when the parties to litigation
themselves cannot. Step-parents are, and for a long time to come will
continue to be, second-class citizens where visitation disputes erupt
between warring adults.
As a child of divorce, ‘step’ relationships have been part
of my life from my earliest memories. No surprise here: I currently have
four step-sisters and one ex-step-sister, and my situation is not uncommon.
For better or worse, my experiences with extended, blended families have
been both extremely positive and extremely negative. In terms of personalities
and behaviors, my stepparents have run the gamut from one who is utterly
kind, warm, inclusive and loving to one or two who were selfish, beset
by addiction, divisive, and cruel. (Sound familiar?)
I doubt I will ever be as close to any of my step-siblings as I will ever
be to my sister, the one constant in my life throughout my childhood,
although I do love and hold my relationship with one of my stepsisters
in high regard. I can imagine different hierarchies for others' experiences
growing up.
I have also been an unmarried (de facto) "stepparent". My approach
was to be the child’s reliable adult friend and mentor (first and
foremost), a good role-model (work diligently and dependably to provide
comforts and essentials), a gift giver, mild briber, positive behavioral
reinforcer (Star Wars Lego sets and new Xbox games will get you everywhere),
and a physical, intellectual and emotional protector of the child. This
is, for me, the proper role of a stepparent; it is a delicate and sometimes
fragile cameo and its success depends a lot on the perceptions of the
‘true’ parent(s) and of my own performance. I did not frequently
try to exert my adult authority over the child, but rather left that responsibility
primarily to his mother unless she asked me for help and intervention
or I knew in my heart it was otherwise necessary based on the circumstances.
In all my words and deeds, I did not try to displace the child’s
father (although he lived 1,500 miles away) and always encouraged the
child to consider his father to be the most important person in his life
besides his mother. I think this approach to step-parenthood is a healthy,
sure way for children to make a transition to having good relationships
with new parental or other figures of authority. Of course, (usually)
we all talk a good game, but many step-parents can be an utter nightmare
from whom the child must be protected.
The delicate self-inquiry is whether the legal struggle is a consequence
of risky behaviors and appropriate protective gate-keeping, or instead
a function of perception based upon hurt and anger by the bio-parent once
the adult parties' relationship reaches extinction. Many children
will suffer a bona fide loss when the step-parent exits or is blocked
from access, and yet their voice and their loss is rarely considered except
to the extent that children of step-parent divorce are expected to work
for the biological team. I came across an Op-Ed in the Los Angeles Times
last Mother's Day, May 10, entitled "I lost my mother in my divorce."
As Lindsay Kaufman, the author, observed "When you marry someone,
you're marrying a family. But no one ever talks about divorcing them."
Likewise Lindsay voiced her poignant ambivalence over whether to send
her former stepmother a Mother's Day card Lindsay had purchased. "Am
I even allowed to send this?" she muses. She might have added "Did
anybody bother to ask me what I thought or wanted?" except that that
message is what underlies why she wrote the article in the first place
(methinks). So many feel a grievous sense of confusion and loss of their
once bi-nuclear families. Lindsay chose not to 'betray' her primary
mother, and to hold the card for possibly next year. Is this what we should
wish for children?
Possibly a blog for another time. Except to observe that Father's Day
is fast approaching....
Several of my recent cases have involved questions of determining, enforcing
or restricting stepparents’ rights in California. In these, I saw
parallels between those stepparents and my own, one good stepparent in
the opposition’s camp (a victim herself of her husband’s ridiculous
choices and actions), and one bad stepparent (who, in my opinion, is the
source of much heated conflict and consternation among all involved in
that family dynamic).
With my personal biases and professional experiences in mind, please allow
me to share some dry legal and practical perspectives on stepparent rights
in the California Family Law context, the constitutional considerations
and limitations, and some twists involving issues such as right of first
refusal situations and child support. I attempt to write this blog from
an objective perspective such that it is balanced on both sides of the
same coin: Some readers can use this information to help bolster his/her
request for rights concerning stepchildren, while others can use it for
authority to prevent an ex from further involving themselves in your child’s
life. In deciding what course to chart, all circumstances are different
and they may matter - but ask yourself if your mind's stories of them
are true, and what best serves your child's or step-child's interests
as opposed to your own agendas? Considered choices, as opposed to blind
reactivity, facilitate outcomes that are most likely to succeed in court
and offer a reprieve for the next generation from the problems of the prior.
TIP: Adult-child relationships and parenting, and custody/visitation disputes
in particular, revolve around
bonding. In the absence of a recent or current history of domestic violence, mental
illness, or drug or alcohol problems the presence or absence of healthy
bonding, and evidence concerning same, is at the core of the outcomes
of these cases and gives rise to the most compelling argument you can
make within the confines of California statutes and case precedent, to
which you are introduced next.
Stepparent Custody and Visitation: Family Codes and California Cases
Beginning with the California Family Code, the first three foundational
statutes to know about concerning stepparent custody and visitation are
Family Code sections
3041,
3100, and
3101.
Family Code sections
3040 and
3041 govern general nonparent custody claims for grandparents, stepparents,
adult siblings, even long time partners/boyfriends/girlfriends. Family
Code section 3040(a)(1)-(3) creates a priority scheme and allows for custody
to nonparents upon a court’s determination that it is in “the
best interests of the child” that neither legal parent have custody
and a nonparent has a home in which the child “has been living in
a wholesome and stable environment” or “any other person …
deemed by the court to be suitable and able to provide adequate and proper
care and guidance for the child.” But an important public policy
principle to know for a stepparent seeking custody orders, a legal parent
opposing a stepparent’s custody orders, and the court’s consideration
in making a decision is the lower priority that stepparents have under
the law; i.e. they are not on equal footing with legal parents coming
to court. Under
Family Code section 3040, as a matter of California public policy joint custody of a child to both
natural or adoptive parents and sole custody to either natural or adoptive
parent is preferred to any form of nonparent custody. As a result of this
policy and constitutional considerations (discussed below),
Family Code section 3041 effectively requires a court finding that granting custody rights to a/either/any
legal parent would be “detrimental to the child” and that
“granting custody to the nonparent in required to serve the best
interests of the child” to make lawful orders superseding the preference
of the biological parents.
Within Family Code section 3100(a) is a general nonparent equivalent to
3041 for visitation claims, but it relates to visitation rights only and
not custody. It allows for courts to make orders granting “reasonable
visitation” rights “to any other person having an interest
in the welfare of the child.”
Further, Family Code section 3101 is the statute specifically concerning
stepparent visitation, and part (a) provides: “Notwithstanding any
other provision of law, the court may grant reasonable visitation to a
stepparent, if visitation by the stepparent is determined to be in the
best interest of the minor child.”
Yet another statute,
Family Code section 3047, relates to stepparents and other nonparent person who are of sufficient
relation to military service members activated or changing duty stations.
Subsection (b)(3)(B) provides “[u]pon a motion by the relocating
[service member] party, the court may grant reasonable visitation rights
to a stepparent, grandparent, or other family member” where there
is “preexisting relationship between the family member and the child
that has engendered a bond that such visitation is in the best interest
of the child,” such visitation will “facilitate the child’s
contact with the relocating party,” and “balances the interests
of the child in having [such] visitation … against the right of
the parents to exercise parental authority.” This portion of the
statute was recently added and made effective on January 1, 2014.
The threshold question of these California statutes on stepparent/nonparent
custody and/or visitation is the constitutionality of such statutes in
their day-to-day application in courtrooms in California. If misapplied
by judges, these statutes potentially tread on the U.S. Constitution’s
14th Amendment and its recognition of the “fundamental liberty interest”
of natural and adoptive parents to determine who has contact with his/her child.
Troxel v. Granville (2000) 530 US 57, 65. Under
Troxel and subsequent California case law on the subject, in order for a stepparent
to have either custody or visitation rights concerning a child under a
lawful court order made pursuant to Family Code sections 3041, 3100, or
3101, the court must find in the stepparents’ favor, by “clear
and convincing evidence,” under a two-prong test of “best
interests” and “detriment.”
Guardianship of Jenna G. (1998) 63 CA4th 387, 391 [re dual showing/findings for nonparent custody
under 3041];
In re Marriage of W. (2003) 114 CA4th 68, 7 CR3d 461 [re dual showing/findings stepparent visitation
under 3101]. The same dual-prong test and showing requirements should
also hold true for an order made pursuant to Family Code section 3047,
the military service member relocation statute, although no reported decision
has squarely addressed the constitutionality of its facial or as-applied
provisions (indeed it only became operative at the beginning of 2014).
Noteworthy and an aside, said
clear and convincing standard is higher standard of proof than in most situations in civil proceedings.
It must be met by evidence “so clear as to leave no substantial
doubt,” or “sufficiently strong to command the unhesitating
assent of every reasonable mind” as it relates to the question of
fact in dispute. I
n re Angelia P. (1981) 28 C3d 908, 919.
Notwithstanding the lack of identical language in each of the above-referenced
statutes, generally first prong of the test is a question of whether stepparent
custody or visitation is in the child’s “best interests;”
i.e. that a court’s ordering of stepparent custody or visitation
would best promote the child's health, safety and general welfare.
Also generally, the second prong is the question of whether denial of
the requested stepparent custody or visitation order would result in “detriment”
to the child; i.e. exclusion of the stepparent from the child’s
life, would actually and in fact harm the child.
Adoption of Daniele G. (2001) 87 CA4th 1392, 1401. As such, the nonparent custody statutes (Family
Code sections 3040 and 3041) and the visitation for military member family-relation
statute (Family Code section 3047) pass constitutional muster because
they expressly incorporate both the “best interests” test
and the “detriment” test required by Troxel. On the other
hand, the general nonparent visitation statute (Family Code section 3100)
does not expressly call for either “best interest” or “detriment”
findings, and the specific stepparent visitation statute (Family Code
section 3101) does not expressly call for “detriment” finding.
TIP: In any stepparent custody or visitation case, litigants on both sides should
request a
Statement of Decision from the court in the pleadings and in connection with any trial or evidentiary
hearing. If a court grants a stepparent some form of rights but does not
make the requisite dual prong findings in the affirmative by the clear
and convincing standard, a proper record for appeal is established and
a reversal of the decision may follow. Conversely, if a court denies a
stepparent some form of rights without express findings, an appeal may follow.
As a practical matter, my experience in stepparent rights cases is that
judges are much more likely to grant some specific, fixed amount of visitation
to a stepparent than they are to grant full-blown legal or physical custody
rights. Particularly with legal custody and it decision-making power,
bio parents can communicate instantly with each other on health, safety,
and welfare issues almost anywhere on the planet such that the input of
a stepparent, while hopefully valuable as between all the parties concerned,
is probably not viewed by judges as indispensable unless both bio parents
are totally unfit themselves. Similarly, if joint verses sole physical
custody is merely a label based on actual timeshare (say 25% or more being
de facto joint physical custody based on precedent in move-away cases),
it is unlikely that a stepparent will obtain an order for 25% or more
of a child’s time unless both bio parents are unfit.
On the other hand, there seems to be a growing favorable reception from
the bench and mental health professionals for stepparents who had significant
roles in a child’s life that in years past, recognizing that, to
a degree, formal distinctions between parent and stepparent is one of
form over substance and is not necessarily determinative of the quality
of relationships between a child and adults who have been in the child’s
life providing care and comfort on a consistent basis for a sustained
period of time.
Another practical reality is that stepparents who have their own children
with whom the litigation-subject child has spent significant time has
an advantage. The argument goes that the detriment that the child may
experience is qualitatively greater from losing the connection to the
child’s step-siblings than from losing the connection with the stepparent
alone. However, the statutes cited above only discuss the stepparent-child
relationship and bonds between them, but are silent on the relationships
and bonds between the child and his/her step-siblings. Nevertheless, in
my experiences the stepchild-stepchild bonds can be a hugely compelling
factor, perhaps stronger in some bench officer’s minds than the
stepparent-stepchild bonds, in the step-parent's favor.
One of my recent stepparent cases involved opposing a service-member/father’s
request that, upon his change of duty station to the east coast, either
the child relocate with him or his wife (the child’s present stepmother)
stand in his shoes in terms of his 43% timeshare (three full, 24-hour
days each week) pursuant to Family Code section 3047. The father and stepmother
were somewhat rooted in California, owning a house and the stepmother
having a good job on-base herself for which time would be needed to find
equivalents. My client, the mother of upstanding and fit qualities, took
a position of one evening per week and one overnight per month for the
child to be in stepmother’s care in the father’s absence was
reasonable and appropriate. The stepmother had two children of her own
with whom the litigation-subject child had shared a 43% timeshare in the
years prior to and during her marriage to the father, and the husband
argued this point very effectively to the judge in counter to my argument
that stepmother had only been a stepmother for about one year. In the
end and despite my argument that the father had not met his clear and
convincing burden under both prongs of
Troxel such that any visitation between the child and the stepmother/family in
the father’s geographical absence should be at my client’s
discretion, because the mediator recommended that the stepmother having
some regularly-scheduled parenting time (yet had never even met with or
interviewed the stepmother), the court ordered three 24 hour visits each
month for the stepmother on Saturday mornings to Sunday mornings, amounting
to about a 10% timeshare with the stepmother. In the end, my client was
pleased with this outcome given that the child might have been ordered
to be with the stepmother 43% of the week (indeed, she felt like it was
going that way before she brought me into the case as her advocate).
This case also involved child support, which the father moved to modify
apparently under the assumption that the court would agree that the child
should be relocated with him to the east coast. Putting child support
modification is not a smart tactical move on his part in light of a highly
uncertain outcome as a child support modification request would otherwise
have had to be raised by my client’s separate motion, but the father
apparently was either ignorant of the consequences of losing the move-away
request on child support or was a bit of gambler and decided to parley
his custody and support requests together. His existing child support
order was for $115/month. At the hearing following determination of the
stepmother’s specific visitation schedule with the child, the question
arose as to what percentage timeshare to use for the father in the
Xspouse calculation of child support: a 15% timeshare by bootstrapping stepmother’s
10% with the father’s anticipated 5% during two weeks summer vacation
and holidays, or a straight 5% timeshare on the vacation/holiday time only?
Family Code section 3047 (b)(3)(D) offered guidance in the service-member relocation context, which states:
“The granting of visitation rights to a nonparent … shall
not impact the calculation of child support.” Ambiguous, huh? I
successfully argued that this provision meant that the stepmother’s
10% could not be included in the child support calculation, and it should
be made only on a 5% timeshare. The judge, with the wisdom of Solomon,
‘split the baby’ and ordered child support increased from
$115/month to $950/month on the basis of a 10% timeshare, at which point
the stepmother burst out in tears in the courtroom audience while the
father unsuccessfully argued this new child support provision would prevent
him from purchasing a house on the east coast. I countered with a bit
of ham, stating “you need to worry about your financial obligation
to your own child before you take responsibilities for other people’s
children” and felt like a bit of a monster. What do you think? I
intentionally suppressed the reason for the father’s military orders
for relocation from California to the east coast; he was convicted in
a court martial for indecent exposure of his genitalia, the victim being
his wife’s (stepmother’s) sister, and sentenced to one-month’s
hard labor (which he did not complete and was therefore ordered off-base
to the east coast).
Now what do you think?
Another of my recent stepparent cases involved a more subtle question about
stepparents’ roles in a dynamic family situation. My client, the
mother, works from home and lives less than two miles from the father
(both close by to the children’s school). As with the case prior,
the father has a 43% timeshare (13 days each month, which he gets to pick
under a two year-old judgment created when he worked ten to twelve 24-hour
shifts), and he has two stepchildren in his household with his new wife.
The father has been promoted since the judgment was entered, and now works
a desk job of about 40 hours a week. He is coming back to court now for
an increase to his 43% timeshare to a 50% timeshare. The case and decision
is still pending.
The rub in this fact pattern is that the father commutes 90 minutes each
way to and from work, and also has four or more meetings each month on
work evenings. As such, he is gone on Mondays to Thursdays most regularly
from 6 a.m. to 7 p.m. (he says he has half-days on Fridays), and multiple
times per month as late as 10 p.m. In essence, during much of the time
that the children are in the father’s care ‘on paper,’
they are really in the stepmother’s care despite the mother being
available 24 hours a day to care for the children when the father is away
working and then return them to his care when he is home from work. This
tension has been and will continue to be particularly at the forefront
during the summers when the children are not in school but the father
is still working the same hours and he desires the children be with the
stepmother so as to maintain his ‘on paper’ timeshare. These
circumstances benefit the father financially through a higher timeshare
percentage in the Xspouse calculation, resulting in a much lower child
support orders that if they were made solely on the time he was actually
present with his children during his ‘on paper’ parenting time.
One way to deal with this situation is to look at, and bring to the attention
of the court, the meaning of the time-share calculation under the code
and its case law. For purposes of the formula for calculating child support
under the statewide uniform guideline, the component designated as “H%”
is the approximate percentage of time the higher earner has or will have
“primary physical responsibility” for the children compared
to the other, lower earning parent.
Family Code section 4055(a)(D). As such, timesharing properly may be imputed to a parent, or between
parents, when the child is not in either parent's physical custody,
but no timesharing adjustment should be made in the guideline formula
where the child is not under either parent's physical supervision.
DaSilva v. DaSilva (2004) 119 CA4th 1030, 1033 [holding that the father's timeshare allocation
should have included credit for part of the time child was in school].
In analyzing the question of ‘who gets credit for the time while
the kids are in school,’ the
DaSilva court stated “if a parent desires credit for time the child is not
physically with them, then the parent has the burden of producing admissible
evidence demonstrating he or she is primarily responsible for that child
during those challenged times. Relevant factors include: (1) who pays
for transportation or who transports the child; (2) who is designated
to respond to medical or other emergencies; (3) who is responsible for
paying tuition (if any) or incidental school expenses; and (4) who participates
in school activities, fund-raisers, or other school-related functions.”
Id., at 1034.
The general stepparent visitation statutes (Family Code sections 3100 and
3101, and not the military service members who are relocated statute of
3047), are silent on the issue of what role the stepparent’s time
with the child plays in guideline child support calculation. Under the
grandparent-specific statute,
Family Code section 3103, a court has the discretion to allocate the percentage of grandparent
visitation between the parents in computing formula child support based
upon “the relevant circumstances of the case.”
Fam.C. § 3103(g)(1). But there is not equivalent guidance in the stepparent statutes (which
otherwise might be available for a ‘by analogy’ argument),
and in any event this case I write of does not have independent stepparent
visitation claims at issue.
As a practical matter, most courts allocate the school-time hours to the
parent who drops the child off for school that day. Fair enough, but what
about a case like mine where the father is paying for stepmother’s
car and gas, and stepmother is the one transporting the children as the
father leaves the home at 6:00 a.m., the mother, father, and stepmother
are designated contacts for the school, both mother and father pay for
incidentals of the children’s public school, and mother and stepmother
primarily participate in school and extracurricular activities? For my
client’s benefit, I will certainly need to argue that the
DaSilva holding and factors should result in the father not getting timeshare credit
for those periods he is away working since it is his wife doing the transports
to/from school on his days while the mother is available to do so, but
I doubt the court will agree because of
DaSilva’s holding that “no timesharing adjustment should be made in the guideline
formula where the child is not under either parent's physical supervision.”
Another way to deal with this situation is to seek ‘right of first
refusal orders’ from the court such that any time the children are
in the care of any third-party, including the stepmother, the mother would
need to be giving the first option of taking the children into her care.
However, it seems that ‘right of first refusal’ orders have
become a disfavored method by both the bench and custody evaluators to
assure kids are first and foremost with their actual parents, often stating
that they see more conflict as a result of such orders than the harms
they are intended to cure.
In any event my client/mother’s three year old judgment contained
a limited form of ‘right of first refusal,’ making the period
eight hours or more and carving out exceptions to the definition of third-parties
to not include the father’s family members (e.g. stepmother and
father’s parents). She responded to the father’s motion by
conditionally agreeing to increase his ‘on paper’ parenting
time to 50%, but also asking to modify the existing ‘right of first
refusal order’ to make it for a three hour period and to remove
the stepmother from exclusion under the Judgment’s ‘right
of first refusal’ provisions. I marshaled tremendous evidence about
the multiple ways the stepmother has been a destructive force in these
party’s dynamic. The same judge that decided the case of the military
service-member/father who had his duty stationed moved to the east coast
(discussed above) will be deciding how this other case is decided.
Returning to legal precedent and theory, an interesting twist to the second,
“detriment” analysis prong (which might be particularly helpful
to a stepparent seeking custody orders in light of the clear and convincing
standard of proof he or she must overcome) is that, pursuant to
Family Code section 3041(c), detriment to the child includes “the harm of removal from a stable
placement of a child with a person [i.e. a nonparent acting as a de facto
parent] who has assumed, on a day-to-day basis, the role of his or her
parent, fulfilling both the child's physical needs and the child's
psychological needs for care and affection, and who has assumed that role
for a substantial period of time.” Essentially, this provision creates
a rebuttable presumption of detriment to the child, so satisfying the
second prong of
Troxel, should a person such as a stepparent who has been a primary caretaker
for a child for several years apply for custody orders.
See H.S. v. N.S. (2009) 173 CA4th 1131, 1136–1137 [de facto parent status for aunt
and uncle qualifying under the terms of Family Code section 3041(c), and
constitutionally-permitted creation of rebuttable presumption in their
favor based on the quality of their relationship with the child, regardless
of the natural mother’s intentions to leave the child with her siblings
on a limited-time basis].
H.S. v. N.S. raises some interesting and difficult questions: What is the logical distinction
between a stepparent and an aunt and uncle if the stepparent otherwise
fulfills section 3041(c)’s criteria? I think the answer must be
no logical distinction exists, except blood affinity. And yet adoptive
parents have no blood affinity with a child, but still have all the legal
rights and responsibilities of a blood parent. Similarly, if the intentions
of the legal parent(s) do(es) not matter as to the nature and duration
of the relationship between the child and the new adult in the child’s
life in terms of the psychological and emotional bonds between a caretaking
adult and a child, does it not follow that a legal parent’s marrying
a new mate (or even bringing a new mate into a home indefinitely) where
the result is that the new mate helps care for a child and develops a
healthy, loving relationship with the child, and the new mate does so
faithfully in a healthy manner for many years, allow for the burden-shifting
principle of
H.S. v. N.S. to apply to stepparents? In other words, don’t or shouldn't
many or most stepparents who have lived with a child for years qualify
as de facto parents under Family Code section 3041(c) so as to have the
burden-shifting benefit of
H.S. v. N.S. and thereby significantly help overcome the clear and convincing burden under
Troxel and Family Code section 3041(b) he or she might face under the second
detriment prong?
A more recent case’s language suggests not. In a stepparent visitation
case under Family Code section 3101,
Chalmers v. Hirschkop (2013) 213 CA4th 289, a mother's former domestic partner filed action
to modify child custody order which had previously denied the former domestic
partner’s request as a stepparent for visitation over the child’s
natural parents’ joint objection to stepparent visitation. The appellate
court held: (1) the former domestic partner had failed to appeal the initial
child custody order which had denied her visitation, and thus was barred
from challenging the trial court’s initial denial through her subsequent
request to modify said order; (2) the changed circumstances rule did not
apply; (3) the former domestic partner did not show changed circumstances
in any event; (4) as a matter of first impression, the former domestic
partner did not have any right to request modification of final child
custody order which denied the requested visitation; (5) the former domestic
partner was not entitled to an evidentiary hearing; and (6) trial court
could terminate jurisdiction over the custody/visitation requests of the
stepparent.
The background to that stepparent’s modification motion was that,
although the trial court denied the stepparent’s motion, the child’s
natural parents voluntarily allowed the stepparent and child to have a
routine weekly evening visit and a monthly overnight visit.
In making its decision, the
Chalmers court issued some strong language to support its reasoning, including:
“the preference for the rights of the parents over those of nonparents
in California,” and “judicially compelled visitation against
the wishes of both parents can significantly affect parental authority
and the strength of the family unit.” It cited
In re Marriage of Gayden (1991) 229 CA3d 151, which reversed a trial court's award of visitation
to the father's former girlfriend under former Civil Code section
4601 (the predecessor to Family Code section 3101) holding that that the
girlfriend did not rebut the presumption that the wishes of the parents
should be followed, and reasoning that the record contained evidence that
there was an atmosphere of bitterness and resentment between the father
and the girlfriend such that visitation was not in the child's best interest.
Chalmers next discussed
Troxel among several other reported California nonparent visitation cases. It
also noted that stepparents, whether former domestic partners or former
spouses, have no legal right to custody, while earlier in the opinion
discussing that substantial visitation was really a form of limited custody. The
Chalmers court also noted that, while a trial court has discretion to grant visitation
to a stepparent under section 3101, it should do so against both natural
parents' wishes only in the most “unusual and extreme cases.”
Chalmers v. Hirschkop, supra, 213 CA4th at 310.
TIP: The lessons to be drawn from Chalmers are many. One might be the inkling
that, while mental health professionals and day-to-day bench officers
in the trenches are placing ever-increasing and greater value on stepparent
relationships with children of failed marriages, those scholarly, old
guard appellate justices do not share the same notions. Their decisions
(which are law and precedent for trial courts to follow and adhere to)
are likely to remain, for the near future at least, more rooted in the
historical/constitutional context of stepparents being a kind of second-class
citizenry.
Second, a stepparent is to not be lulled into a false sense of security
or immutability of voluntary visitation agreed-to by one or both of the
child’s parents. Seek a court order immediately not only to preserve
standing in a case, but also to establish a court-sanctioned routine for
parenting time with a stepchild.
Third, the old saying that ‘the enemy of my enemy is my friend’
holds true in stepparent litigation; e.g. it is one thing for a stepparent
with the blessing of one parent to have court-ordered visitation, and
entirely different when a stepparent unilaterally seeks visitation rights.
As such, a stepparent should seek to have excellent relationships with
not only his or her spouse, but also the child’s other parent should
the stepparent want to preserve a relationship with the child after separating
from a spouse.
Fourth, Chalmers is must read and an excellent case in terms of policy
statements for a parent opposing stepparent visitation, especially where
a stepparent is seeking substantial, regular visitation periods such as
several overnights a week.
Fifth, a stepparent should have reasonable expectations; two or three days
a week is a de facto custody situation and an unlikely outcome for most
litigation circumstances, but a several dinners each month and a weekend
overnight is a more manageable concept for a judge to wrap his or her
head around and approve.
Sixth, a stepparent seeking visitation orders, whether or not over the
objection of both parents, should have expert opinion to offer the court
that support the proposition that such orders would be in the child’s
best interests and denial would be detrimental to the child. Fortunately,
court orders fostering relationships between fit and caring stepparents
and stepchildren they have bonded with appears to be on an upswing, even
in vogue, with child psychologists and other mental health professionals.
A judge can much more readily substantiate the requisite two-pronged clear
and convincing finding in favor of a stepparent where the expert witness
opines in the favor of the stepparent’s request.
Seventh, remember that, for those seeking stepparent custody or visitation
orders, with the joy of continued a relationship of caring for children
on a set schedule might also come financial responsibilities of paying
for the children. In other words, don’t be surprised if you are
ordered to pay child support. It would be imbalanced, possibly, for you
to feel entitled to one without the other?
Hopefully, our converstation about these cases will provide you some clues
and insights about where to start and how to develop arguments that may
gain traction with your family court bench officer.
Conclusion
I see so many different permutations in terms of good stepparent, bad stepparent;
supportive current stepparent husband or wife (or same-sex partner) or
interfering, angry present spouse; stepparents with serious mental health
or drug problems, and/or bio-parents with the same. It is not one size
fits all. Bio-parents continue to be much more empowered than the "other".
Mr. Arnold and I want you to know, our efforts to educate you throughout
these pages should come with warning labels. What you do with the information
is your choice, but it is always my hope that you make wise, balanced
choices that extend beyond your perceived self-interest or desires. If
you are a step or non-parent (almost an offensive term for those bonded
to the children of a person whom they loved or once loved, is it not,
as in non-entity?), I hope that this overview will assist you in the decisions,
negotiations or battles to come!
Search your heart before engaging on whatever legal journey you feel compelled
to invoke but, by all means, protect kids when they need protection.
Author: Michael C. Peterson, Esq.