Stepparent Visitation Rights in California

California has endeavored, by statute, to recognize the right of stepparents to have visitation rights with their stepchildren. However, several recent Court decisions, have severely limited the scope of stepparent's rights, and, the jurisdiction and discretion of trial courts in considering stepparent visitation requests.

A. Statutory Authority For Stepparent Visitation Rights in California:

1. Family Code, Section 3101 provides that:

a) A court may grant reasonable "visitation" to a stepparent, if visitation by the stepparent is determined to be in the best interests of the minor child;
b) That if a domestic violence protective order was issued against a stepparent, the court SHALL consider whether that adversely affects the request;
c) Stepparent visitation rights MAY NOT be ordered that would conflict with a right of custody or visitation of a birth parent who is not a party.

2. Family Code, Section 3176(a) provides that if a stepparent's request for visitation with a stepchild is "contested" that the matter may be referred to mediation; and

3. Family Code, Section 3185 provides that if mediation does not result in an agreement regarding the stepparent's request for visitation with a stepchild, the mediator shall so inform the court, and, the court SHALL set the matter for a long cause hearing on the unresolved issues.

B. Appealate Court Decisions Limiting The Trial Court's Jurisdiction And Discretion In Stepparent Visitation Requests:

1. The key element to remember is that California's statute ONLY addresses a stepparent's right to reasonable "visitation" with a stepchild.

2. The California stepparent visitation statute DOES NOT confer "jurisdiction" to a trial court to award a stepparent "custody" rights to a stepchild in an action brought under the California Family Law Act. This point was made clear in the case of In re the Marriage of Lewis & Goetz(1988) 203 Cal App 3d 514.

3. Also, both the U S Supreme Court, and, the California Court of Appeal, in recent decisions, have severely limited the "discretion" of a trial court in ruling on a stepparent's request for stepparent visitations, where the natural, birth parent and/or parents OBJECT to the request. Specifically:

a) In the case of Toxel v. Granville (2000) 530 US 57, the United States Supreme Court, in striking down a Washington statute held:

(1) That the Due Process Clause of the Constitution accords parents a fundamental right to raise their children, and, to make decisions concerning the care, custody, and control of their children;

(2) That absent a showing of unfitness of a child's parent, that there is a presumption that fit parents act in the best interest of their children, and, when a parent's decision is judically challenged, the trial court MUST give the parent's decision "special weight"; and

(3) That as long as a parent adequately cares for his or her children, the Due Process Clause does not permit a state to infringe on the fundamental rights of parents to make child rearing decisions simply because a state judge believes a "better decision could be made" than the decision of a fit parent;

b) In the recent California Court of Appeal case of In re the Marriage of W (2003) 114 Cal App 4th 68, the Court:

(1) Cited with approval the Toxel v. Granville decision; and

(2) Ruled that the trial court, who granted a stepfather continued visitations with his stepson, over the objection of the child's birth parents, UNCONSTITUTIONALLY applied Family Code, Section 3101 in that case, since the record did not disclose that the trial court gave "special weight" to the parent's objections, and, there was no showing that the objecting parents were unfit parents.It bears notation that in the Marriage of W case:

(a) the stepparent had been with the child's birth mother since the stepchild was very young;

(b) the stepparent had, post-divorce to the birth mother, been exercising regular visitations with the stepchild, who referred to him as "Dad";

(c) the trial court had referred the case to a Child Custody Evaluator who reported that it was in the stepchild's "best interests and welfare" to continue to have visitations with the stepparent.