Step-Parent Rights / by Cassandra Hearn

Step-parents have a unique role in the lives of their step-children. In the optimal situation, a step-parent has a close bond with the step-children and provides extra love, guidance, and support to the step-children throughout their lives. Unlike a biological parent, however, step-parents do not have an automatic presumption of any type of parental rights in relation to step-children. Case law from both California courts and the Supreme Court of the United States makes it clear that a parent has the right to make visitation decisions for their children. Accordingly, the default position of the law is that if a person is not a parent, the parent can make the decision to cut the step-parent out of the children's lives.

California law does provide some relief from this default position. First, it should be noted that while a step-parent remains married to and living with a biological parent, there is no real avenue for a step-parent to obtain any sort of court-ordered custody of step-children. This is logical, as the step-parent would presumably already have access to the children during the biological parent's custody time. (The one exception to this rule would be if the step-parent adopts the step-children, discussed in our step-parent adoption blog.) Second, the definition of step-parent is a crucial element in these cases. The step-parent must be or have been legally married to the biological parent. Simply living together or a long-term relationship will not be sufficient to allow a person to avail him or herself of the options under California law.

In order to request the court enter an order for step-parent visitation, the step-parent must file a petition in family court or if there is already a custody dispute ongoing between the biological parents, the step-parent may intervene in the existing case. The step-parent must serve both of the biological parents with notice of the court proceeding, and either or both biological parents may decide to oppose the request. California Family Code 3101 provides that a court will look to the best interest of a child to decide if step-parent visitation is in the child's best interest. The longer and stronger the relationship is between the step-parent and the child, the more likely a court is to grant visitation. The courts will not grant visitation if the visitation would interfere with the rights of a biological parent. This means that if both biological parents are present in the child's life and are fit parents, it can be very difficult for a step-parent to obtain court-ordered visitation.

We have experience in helping our clients with difficult and unique step-parent rights issues. Call us today at 619-800-0384 for a consultation and we can discuss your case and the children in your life.