What Does “Best Interest” Mean?
Under California Family Code Section 3101, the courts are fully empowered to decide whether a stepparent should be granted visitation rights. According to Section 3101(a), the court may grant visitation rights if the visitation is determined to be in the best interest of the child.
How does the court determine what is in the best interest of the child? The judge may consider the following factors:
- The ability of the biological parents to take care of the child
- The emotional relationship between stepparent and child
- The emotional relationship between the biological parents and the child
- Whether the stepparent or biological parents have a history of domestic violence
- The child’s age
- The nature of the child’s homelife and living arrangements
- The child’s health
In general, the court will look at how long a stepparent has been involved in a stepchild’s life. If the stepparent has been a significant figure in the child’s life for some time, visitation rights are more likely to be granted.
Let’s look again at our example:
For three years, Mark has spent every day helping Jess take care of Poppy. He plays Barbies with her, helps with her homework, and treats her to ice cream at Disneyland. Poppy has begun to call Mark “Dad.” The judge in the case appreciates that Mark and Poppy have a strong emotional bond, and that Mark has been a consistent presence in her life for a long time.
What Does “In Loco Parentis” Mean?
It is possible that a court may refer to a doctrine called “in loco parentis” when making their decision about whether to grant visitation rights. In Latin, “in loco parentis” means “in the place of a parent.” If a stepparent took on the duties of a biological parent, then the court will take this into consideration.
This doctrine is mostly used in cases where a biological parent was absent for most of the child’s life. If the stepparent is the only parent the child has ever known, the doctrine may also apply.
In our example, Poppy has a relationship with her biological father, whom she sees every other weekend. In this case, though Mark is a good stepfather, he is not the only parent Poppy has ever known. Because Poppy maintains a relationship with her biological father, it is unlikely Mark can use the “in loco parentis” argument.
What Is the Process to Request Stepparent Visitation Rights?
In California, in order to receive stepparent visitation rights, a person must first file a petition with a court. A new case will be opened in which the stepparent and the biological parent (or parents) are parties to the case. Because of the complexity of these cases, it is good practice for an individual to hire a lawyer experienced in family law.
How Do Domestic Violence Allegations Affect the Chances of Getting Visitation Rights?
If a stepparent has been accused of domestic violence, it will be very difficult to earn visitation rights. Under California Family Code Section 3101(b), the threat of violence or abuse toward the child is a disqualifying factor. This is because visitation rights would not be in the best interest if the child. A stepparent facing domestic violence allegations is best advised to hire an experienced family law attorney.
What If There Is a Conflict with the Custody Rights of a Biological Parent?
According to Section 3101(c) of the California Family Code, a stepparent might not be allowed visitation if it would interfere with a biological parent’s visitation or custody rights. It is still possible for the stepparent in this case to be granted visitation, but he or she would be best advised to hire a family law attorney.
Let’s refer to our example. Because Poppy’s biological father has visitation rights, it is important that Mark hire a lawyer to help him craft a deal between parties.
What Happens When Both Biological Parents Don’t Want Stepparent Visitation?
While this is a challenging situation, it is not game over. The stepparent can still try to convince the court that their visitation is in the child’s best interest. To not be in the child’s life would be damaging to the child. Despite both biological parents’ opposition, the stepparent could receive visitation rights.
