| California has endeavored, by statute, to recognize | | | | ruling on a stepparent's request for stepparent |
| the right of stepparents to have visitation rights with | | | | visitations, where the natural, birth parent and/or |
| their stepchildren. However, several recent Court | | | | parents OBJECT to the request. Specifically:a) In the |
| decisions, have severely limited the scope of | | | | case of Toxel v. Granville (2000) 530 US 57, the |
| stepparent's rights, and, the jurisdiction and discretion | | | | United States Supreme Court, in striking down a |
| of trial courts in considering stepparent visitation | | | | Washington statute held: |
| requests. | | | | (1) That the Due Process Clause of the Constitution |
| A. Statutory Authority For Stepparent Visitation | | | | accords parents a fundamental right to raise their |
| Rights in California: | | | | children, and, to make decisions concerning the care, |
| 1. Family Code, Section 3101 provides that:a) A court | | | | custody, and control of their children; |
| may grant reasonable "visitation" to a stepparent, if | | | | (2) That absent a showing of unfitness of a child's |
| visitation by the stepparent is determined to be in | | | | parent, that there is a presumption that fit parents |
| the best interests of the minor child;b) That if a | | | | act in the best interest of their children, and, when a |
| domestic violence protective order was issued | | | | parent's decision is judically challenged, the trial court |
| against a stepparent, the court SHALL consider | | | | MUST give the parent's decision "special weight"; and |
| whether that adversely affects the request;c) | | | | (3) That as long as a parent adequately cares for his |
| Stepparent visitation rights MAY NOT be ordered | | | | or her children, the Due Process Clause does not |
| that would conflict with a right of custody or | | | | permit a state to infringe on the fundamental rights |
| visitation of a birth parent who is not a party. | | | | of parents to make child rearing decisions simply |
| 2. Family Code, Section 3176(a) provides that if a | | | | because a state judge believes a "better decision |
| stepparent's request for visitation with a stepchild is | | | | could be made" than the decision of a fit parent;b) In |
| "contested" that the matter may be referred to | | | | the recent California Court of Appeal case of In re |
| mediation; and | | | | the Marriage of W (2003) 114 Cal App 4th 68, the |
| 3. Family Code, Section 3185 provides that if | | | | Court: |
| mediation does not result in an agreement regarding | | | | (1) Cited with approval the Toxel v. Granville decision; |
| the stepparent's request for visitation with a | | | | and |
| stepchild, the mediator shall so inform the court, and, | | | | (2) Ruled that the trial court, who granted a |
| the court SHALL set the matter for a long cause | | | | stepfather continued visitations with his stepson, |
| hearing on the unresolved issues. | | | | over the objection of the child's birth parents, |
| B. Appealate Court Decisions Limiting The Trial Court's | | | | UNCONSTITUTIONALLY applied Family Code, Section |
| Jurisdiction And Discretion In Stepparent Visitation | | | | 3101 in that case, since the record did not disclose |
| Requests: | | | | that the trial court gave "special weight" to the |
| 1. The key element to remember is that California's | | | | parent's objections, and, there was no showing that |
| statute ONLY addresses a stepparent's right to | | | | the objecting parents were unfit parents.It bears |
| reasonable "visitation" with a stepchild. | | | | notation that in the Marriage of W case: |
| 2. The California stepparent visitation statute DOES | | | | (a) the stepparent had been with the child's birth |
| NOT confer "jurisdiction" to a trial court to award a | | | | mother since the stepchild was very young; |
| stepparent "custody" rights to a stepchild in an action | | | | (b) the stepparent had, post-divorce to the birth |
| brought under the California Family Law Act. This | | | | mother, been exercising regular visitations with the |
| point was made clear in the case of In re the | | | | stepchild, who referred to him as "Dad"; |
| Marriage of Lewis & Goetz(1988) 203 Cal App 3d | | | | (c) the trial court had referred the case to a Child |
| 514. | | | | Custody Evaluator who reported that it was in the |
| 3. Also, both the U S Supreme Court, and, the | | | | stepchild's "best interests and welfare" to continue to |
| California Court of Appeal, in recent decisions, have | | | | have visitations with the stepparent. |
| severely limited the "discretion" of a trial court in | | | | |