Do stepparents have the right to visit their stepchildren even if they are no longer married to the children’s biological parent?
In California, the court may grant reasonable visitation to a stepparent if it determines such visitation furthers the child’s best interests. (Fam. C. § 3101.) However, stepparent visitation rights are considered secondary to the rights of biological parents. Accordingly, there are quite a few limits on stepparent visitation rights.
What happens if both biological parents object to visitation between the child and stepparent?
In summary, the court may order stepparent visitation against the biological parents’ wishes only in the most “unusual and extreme cases.” (In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1520.) If the biological parents oppose the visitation, the stepparent has the burden to show by clear and convincing evidence that such visitation is in the child’s best interest and denying such visitation would be detrimental to the child.
The laws about stepparent visitation are illustrated by two major court cases: In re Marriage of W. (2003) 114 Cal.App.4th 68 and Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289.
Marriage of W.
Here, the court found that when Family Code section 3101 is applied, there must be a presumption that biological parents’ decision about visitation is in the child’s best interest. In Marriage of W., Stepfather sought visitation with the child after separating from the child’s biological mother. At first, the child’s biological mother and father approved of limited visitation between the stepfather and child. However, when the sepfather moved out of the geographical area, both biological parents objected to ongoing visitation.
The court started its analysis by recognizing that parents have a substantive due process right to raise their children. Further, California recognizes parents’ fundamental rights. (In re. B.G. (1974) 11 Cal.3d 679, 693-694.) California courts have a long history of deferring to the jointly expressed wishes of the child’s parents except in the most “unusual and extreme” cases. (In re. Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1520.) If both biological parents oppose stepparent visitation, the stepparent visitation can only be ordered if it is in the child’s best interest and denying such visitation would be detrimental to the child. (Id. at 1520.)
Chalmers v. Hirschkop
Here, the biological mother’s former domestic partner asked the court for increased visitation with the child pursuant to Family Code section 3101. Both of the child’s biological parents objected to increasing the stepmother’s visitation. The court denied the stepmother’s request, stating that parents “have the responsibility and the duty to make decisions that they determine, jointly, are in this child's best interest. They have done so and this court is not going to interfere with that.” (Chalmers v. Hirschkop (2013) 213 Cal.App.4th 289, 296.) The court found that while the stepmother argued that more visitation with her was in the child’s best interest, she failed to show how the child would suffer detriment if visitation remained limited pursuant to the biological parents’ wishes.
As illustrated above, stepparent rights are very limited. If the child’s biological parents do not approve of visitation, the stepparent will need to overcome significant hurdles