Pointers for STEP-PARENTS (and Other "Non" Parents) Seeking Visitation With Their (Step) Children!

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.


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.