Stepparent Visitation Rights
(California Family Code 3101)
Are you a stepparent who is seeking court ordered visitation with your stepchild? Although you are not the biological parent of your stepchild, you may have visitation rights with your stepchild. Because stepparent visitation cases can be complex matters, it is important that you speak with a Wallin & Klarich family law attorney who can evaluate your case and guide you through every step of the stepparent visitation process.
Under California Family Code Section 3100, a judge may grant “reasonable visitation rights” to any person who has an interest in the welfare of the child. This includes a stepparent who has developed a strong bond with their stepchild. The court may grant you reasonable stepparent visitation rights if you have developed such an interest in the well-being of your stepchild.
In order for a family law court in Orange County to grant you stepparent visitation rights, the court must first determine whether you have standing, or a legal right, to request visitation with your stepchild. The court will then balance the best interests of your stepchild when determining whether to grant your stepparent visitation request.
It is important to note that family law courts in Orange County favor “frequent and continuing contact” with both biological parents, and thus, if both biological parents are willing and able to care for your stepchild, it can be very difficult for you to obtain stepparent visitation orders. Further, the burden is placed on the stepparent to show that it is in the best interest of the child to grant stepparent visitation. For this reason, without the assistance of an experienced Orange County Stepparent visitation attorney, it can be very difficult to obtain stepparent visitation orders when both biological parents want to be involved in their child’s life.
Who Qualifies as a Stepparent?
Under California Family Code Section 3101(d)(2), a stepparent is defined as “a person who is a party to the marriage that is the subject of the proceeding with respect to a minor child of the other party to the marriage.” This means that you must be legally married to one of the biological parents of your stepchild in order to have standing to request stepparent visitation rights. If you are not married to one of the biological parents of your stepchild, then you will have no standing to make a request to the court to have visitation rights.
Process to Request Stepparent Visitation Rights
In order to obtain stepparent visitation rights in California, you must first file a petition with a family law court requesting stepparent visitation rights. Usually in the case of stepparent visitation rights, a new case will have to be opened, in which you and the biological parent(s) are parties to the court case. However, if an ongoing child custody case has already been opened between the biological parents, you would need to be joined as party to that case, where you would be able to request stepparent visitation rights.
Keep in mind that because there are different procedures to request stepparent visitation rights, the forms associated with each procedure are different, and can be confusing. The procedure and forms can even vary from county to county. Thus, it is very important that you hire an experienced family law attorney to represent you and draft the necessary legal documents so that your rights as a stepparent are protected.
The California Family Code on Stepparent Visitation
The general provision that allows for stepparent visitation can be found in California Family Code 3100, which states that the court, in its discretion, may grant reasonable visitation rights to a person who has an interest in the welfare of the child. A stepparent would have an interest in the welfare of a child because the stepparent and child are related by marriage. This, of course, is only a general provision with regards to making a request for stepparent visitation, and the process becomes more complex after the requirements of Section 3100 have been met.
Best Interests of the Child Standard
California Family Code Section 3101 presents the requirements for being granted stepparent visitation rights. Under this section, the courts have full discretion to determine whether to grant stepparent visitation rights. When evaluating a stepparent visitation rights case, the Orange County family law courts will look to section 3101(a), and must determine whether granting stepparent visitation rights is in the best interests of the child.
Under California Family Code 3011, in deciding what is in the best interests of your stepchild, courts may consider a variety of factors. Among these include:
1) The biological parents’ ability to care for your stepchild
2) The emotional relationship between you and your stepchild
3) The emotional relationship between the biological parents and your stepchild
4) Whether there is any history of domestic violence by you or the biological parents
5) The age of your stepchild
6) The duration and adequacy of your stepchild’s living arrangements; AND
7) The health of your stepchild
The courts will also consider the amount of time that you have spent with your stepchild. If you have been a parental figure in your stepchild’s life for a significant period of time, the family law courts will be more likely to grant you stepparent visitation rights.
The Doctrine of “In Loco Parentis”
While the California family law courts will rely on Family Code Section 3101(a) in making a stepparent visitation rights order, the courts may also use the doctrine of “In Loco Parentis,” as a factor, in making their orders. “In Loco Parentis” is a Latin term meaning “in the place of a parent.” This doctrine will allow the courts to take into consideration whether a strong bond has developed between a stepparent and a stepchild. The doctrine will most likely apply if you have intended to assume parental status over your stepchild, and you took on the duties of a parent.
This will most often be used in cases where the stepparent is really the only parent that the child has ever known, due to the absence of one or both biological parents. Of course, if the biological parents of your stepchild are willing and able to care for your stepchild, it will become more difficult for you to obtain stepparent visitation rights, even with the “In Loco Parentis” doctrine being used as a factor.
Domestic Violence Orders and Stepparent Visitation
Under California Family Code Section 3101(b), if you have been accused of domestic violence, or a criminal protective order is in place between you and your stepchild, it will be more difficult for you to prove that granting stepparent visitation is in the best interests of your stepchild. If the court believes that there is any threat of violence or abuse by you towards your stepchild, then it will not grant you stepparent visitation rights. Thus, it is essential that you refute any claims or allegations against you of domestic violence before requesting stepparent visitation rights.
Requesting stepparent visitation rights while a domestic violence claim or allegation is pending against you can prove to be one of the most challenging and complex types of cases when it comes to stepparent visitation rights. Due to the sensitive nature of these claims, you should not attempt to handle such a case without the assistance of an experienced family law attorney, or else you could lose all visitation rights to your stepchild.
Conflicts with the Custody Rights of a Biological Parent
Perhaps one of the larger hurdles when it comes to stepparent visitation rights is when there is a conflict with the custodial rights of a biological parent. Under California Family Code Section 3101(c), stepparent visitation rights may not be granted if they would conflict with the right of child custody or visitation of a biological parent who is not a party to the stepparent visitation proceeding.
This means that the family law court has full discretion to grant or deny you stepparent visitation rights if granting you visitation rights would interfere with the custody rights of a biological parent. This presents a very difficult challenge if both biological parents want to be involved in the care of their child. However, this does not mean that the courts cannot craft a stepparent visitation order that is agreeable to all parties, or make an order that allows a stepparent to have visitation rights, but does not prejudice the rights of the biological parents. An experienced stepparent visitation rights attorney can ensure that you do not lose your rights to reasonable visitation as a stepparent.
What if both biological parents are against stepparent visitation?
If both biological parents are against you having stepparent visitation rights, all hope is not lost. You will need to show the family law court that denying stepparent visitation rights is not in the best interest of your stepchild, or that denial of stepparent visitation rights would actually be detrimental to your stepchild. Due to the complexity of a matter where both parents are able and willing to care for your stepchild and do not want you to have any stepparent visitation, it is extremely important that you contact an experienced Orange County family law attorney to fight for your stepparent visitation rights. Attempting to handle a complicated stepparent visitation rights matter on your own could result in a denial of visitation rights which will be very difficult to reverse.
Frequently Asked Questions About Stepparent Visitation
1. What is stepparent visitation?
Stepparent visitation occurs when a stepparent, who is married to the biological parent of their stepchild, seeks visitation with their stepchild on certain days or times, or at the discretion of the biological parents. Stepparent Visitation is allowed under California law. However, there are many complex issues associated with stepparent visitation. The family courts in Orange County may grant a request for stepparent visitation, as long as certain findings are met and the best interests of the child are served.
2. What do I have to prove in order to obtain stepparent visitation?
In order to obtain a stepparent visitation order, you must prove that granting stepparent visitation rights are in the best interests of your stepchild. The court will take many factors into consideration when determining the best interest of your stepchild, including whether or not there is a domestic violence restraining order, or other criminal protective order, against you, protecting your stepchild.
Once the court determines that it is in the best interests of your stepchild to have visitation rights with you, the court must also determine whether the stepparent visitation rights interfere with the rights of a biological parent. If the rights do not interfere with a biological parent’s rights, then visitation may be granted. If the stepparent visitation rights interfere with a biological parent’s rights, then stepparent visitation rights may not be granted.
3. Will I be denied stepparent visitation rights if I have allegations of domestic violence against me?
Not necessarily. While it is important to refute any claims of domestic violence against you, allegations of domestic violence do not automatically remove your rights as a stepparent. In situations like this, it is in the court’s discretion to order stepparent visitation, and the court could even order supervised stepparent visitation to ensure that your stepchild is protected.
4. If I am granted stepparent visitation rights, can I seek child support payments or will I be obligated to make child support payments?
In California, there are no current statutes providing for stepparent child support when stepparent visitation rights have been ordered. However, this could change at any time, as many states are moving towards granting stepparent child support payments in conjunction with stepparent custody and visitation rights. Stepparents should be aware of this possibility before asking the family law courts for visitation rights.
5. Is it important to hire an experienced family law firm to help me if I wish to obtain stepparent visitation?
There are many complex issues to consider when making a request for stepparent visitation rights. Thus, if you are currently in a position where you would like to obtain stepparent visitation rights, it is essential that you have an experienced Orange County stepparent visitation rights lawyer guide you through every step of the process. The skilled stepparent visitation rights lawyers at Wallin & Klarich have over 30 years of experience helping our clients resolve child custody and stepparent visitation rights. With our knowledge and experience, you can rely on our promise that we will fight hard to achieve the best outcome in your case. Our Orange County family law attorneys are available 24 hours a day, 7 days a week, and 365 days a year to answer any questions you have regarding your case.
With offices located in Los Angeles, Orange, Riverside, San Bernardino, San Diego, Victorville, West Covina, Sherman Oaks, Torrance and Ventura , there is a Wallin & Klarich attorney available wherever you happen to live. Call us today at (888) 749-7428. We will get through this together.