Stepparent Child Visitation Rights
Custody battles are often ugly between divorcing biological parents, but when a biological parent and a stepparent get divorced, does the stepparent have a legal right to child visitation? The answer to that question depends largely on the state in which the parents reside, but in general, stepparents seeking child visitation rights have an uphill climb if the biological parent is still living, and does not wish for the stepparent to have child visitation.
Do Step Parents Have Child Visitation Rights?
In many instances, stepparents have no formal rights to child visitation if the biological parent refuses to allow them to see the children. That is because in many states and courts, biological parents are considered best suited to make decisions about who spends time with their children, and when. This standard is typically known as the parental preference rule, or the doctrine of parental rights. When such a doctrine is used, non-parents, including stepparents and grandparents, face difficult challenges to gaining child custody and child visitation rights.
Exceptions to the Parental Preference Rule
Nevertheless, there are several exceptions to this parental preference rule that may allow stepparents child visitation rights. For example, stepparents who have been involved in the child’s life since infancy, and/or who have been involved in the raising of that child for many years, are more likely to be able to petition for visitation and even custody rights. In general, stepparents who were married to the biological parent for a long period of time also have better success when seeking visitation.
State Laws Regarding Child Visitation Rights for Stepparents
In a pivotal U.S. Supreme Court case, Troxel v. Granville, the child visitation rights of third parties, specifically grandparents, were closely examined. In that case, a Washington State statute allowing third parties to file for visitation was struck down in part because it was considered unduly broad in its scope. As a result many states sought to better define their standards regarding the child visitation rights and custody rights of non-parents, like stepparents.
Uniform Marriage and Divorce Act
States like Illinois have laws that formally recognize the important role played by stepparents in raising children, and allow for their petitioning for visitation. In Illinois, adherence to the Uniform Marriage and Divorce Act means that third parties, like stepparents and grandparents, can file for child visitation and custody. Nevertheless, these laws have been challenged in state appellate courts, and so the jury remains out on the specific child visitation rights of stepparents.
Best Interests of the Child Standard
Some other states utilize what is known as “best-interest-of-the-child” standard to address third party custody and child visitation rights questions. In these states, courts consider what is in the best interest of a child, even though biological parents have the preeminent right to custody. In other words, these states consider that while biological parent’s rights are preferred, such rights to custody are not absolute, and must be balanced against what best serves the child’s needs. In many cases, the child’s best interest is served by remaining with the child’s biological parents, but stepparents rights to visitation and custody are considered if the child’s interests are better served by staying with the stepparent. Various factors, including the child’s physical, emotional, financial, moral/religious, and psychological well-being are taken into account.
What if the Biological Parent is Deceased?
In many cases, a stepparent’s rights to visitation change significantly if the biological parent is deceased. In these cases, the stepparent can petition for visitation if:
- The child in question is 12 years old or older
- The stepparent was married to the biological parent, who is now deceased, for 5 years or more.
- The stepparent was providing significant care to the child prior to requesting visitation
- The child wants to have visitation with the stepparent
- Visitation is proven to be beneficial to the child.
The key to these cases is that the stepparent is found to have had a pivotal role in the child’s life since childhood and that granting stepparents child visitation rights or custody would serve the child’s best interests.
Because child visitation rights and custody laws vary widely from state to state, stepparents seeking visitation rights should consult with an attorney to learn the rights of stepparents in their state.