What rights to custody do I have as a step mother after a divorce?

Question

My husband and I have filed for divorce.  Together we have 2 children.  He had 1 child from a previous relationship when we met.  He has full custody of his child and her biological mother has not had any contact since her 1st birthday.  My stepdaughter is now 11 years old.  I have been the only mom she has ever had as she was less than a year old when her dad and I started dating.  My husband has continuously worked out of town for extended periods of time for the last 8 years.  I have been the main caregiver on all levels to my stepdaughter.  Because of the divorce, my husband has now moved out of state and has taken my stepdaughter.  Even though she wants to stay living with me and considers me her mom, he is refusing to let me have contact with her.  Do I have any rights at all?  Visitation?? Guardianship??  Custody??

Leonard A. Kaanta · Answer

No, you do not have any rights.

Dean Esposito · Answer

Unfortunately, you do not unless her father agrees to allow you visitation.

Clayton Lockhart · Answer

Since you are not the biological mother of that child, you have absolutely zero rights to her that are superior to the child's biological parent(s).

James Lentz · Answer

What a sad situation.  The only rights you have are those granted by the county court of common pleas juvenile or domestic relations divisions in your county.  If they have not ruled on rights for you, you have none.  You may yet be able to qualify for visitation.  You would have some serious service issues, but you may yet try.  Contact a family lawyer  for further information.

Harry Roth · Answer

Getting custody would mean proving him to be unfit. It does not sound as though he is. Mean and cold-hearted, but not unfit. 

The law is that a step-parent has a right to step-parent visitation if the judge determines it to be in the best interests of the minor. It sounds as though the two children you have jointly with your former husband are with you, it would for sure be in her best interest to visit with her siblings.  

Not every judge or mediator knows about step-parent visitation. Ask the judge or mediator hearing your case to look at Family Code Section 3100(a).

The law requires that a parent (who does not have custody) be given visitation unless it would be detrimental to the child.

The court may order visitation for "any other person with an interest in the welfare of the child" if it would be in the child's best interests.

There are some United States Supreme Court cases that say that the right to raise one's own children without the interference of the government is a protected right and that suggest that any order requiring visitation with a non-parent over the objection of the parents might be unconstitutional.

So the law passed by the California Legislature gives the judge very wide authority, but the US Constitution may limit that authority.

All you can do is to make your request and see what happens.  You do have another issue and that is whether your request belongs in California or it belongs in the court of the state where the child lives.

For sure, it does not belong in your divorce case. It actually belongs in the divorce case of your husband and the mother of his child.

You have to butt into that case (there is a technical term for it; it is actually called being "joined" to the other case but butt in is more descriptive of what is actually happening) and use it as the forum for asking for visitation rights.   Good luck with this.

Melvin Franke · Answer

Only if you can prove he's unfit to parent her.

Loren Zahn · Answer

It sounds like a guardianship is probably the appropriate step to take, since step-parent visitation is difficult to obtain. If you are in my area, please contact me for a free consultation to discuss your options.

Laurie Peters · Answer

This is a very complicated area of the law and without more information it is hard to tell.  Stepparents do have rights to visit their step children and in some case may be considered the presumed parent if the biological parent is not involve.  

This is a complex issue which needs to be handled appropriately.  I would seek a consultation with a lawyer in your area to find out what your options are based on your specific facts.

Mark Petersen · Answer

You do not have any rights to a step-child including visitation and custody unless you have adopted the child. 

Guardianship is an option but you would have to prove that the father is unable to care for the child or is unfit as a parent. I imagine that the father would contest any guardianship proceedings.

Gary Russell · Answer

As a non-legal parent you lack any standing to file for custody or parenting time. Guardianship could only be awarded if it was found that the father was incapable or unfit for taking care of the child, but even then, another person could be appointed guardian.  The father has every legal right to deny you contact/parenting time/custody of your step daughter, if he so chooses.

Joanna Mitchell · Answer

No, sorry. You have no rights in this case.

Mark Brown · Answer

Regrettably, if you did not adopt the child, you have no rights to custody or visitation.

John Kirchner · Answer

Not really.  You might be able to convince a judge in the state where she is now living to grant you some access as being in the child's best interest, but it is not likely.

Steven Alpers · Answer

The only possiblitity is to have visits ordered when you have visits with the other children and that requires his agreement.  You have no rights because you are not the mother and you did not do a step-parent adoption.

Michael Yeksavich · Answer

Ask your lawyer but normally step parents have no rights.

Leonard Schwartz · Answer

You do not have any rights superior to the father. The stepdaughter is in no way related to you. A court may look into bonding and carve out a formula to help you but there is no guarantee that they will.

Steven D. Dunnings · Answer

If you never adopted the child the you have no rights.

John Brennan · Answer

You have very little, if any legal rights in regard to your step-daughter (unless you adopted her).  That said, under the circumstances outlined it is extremely sad that your ex is willing to visit your problems on your step-daughter.

Monica H. Donaldson Stewart · Answer

If he is not "unfit" as a parent (this is a significant oversimplification of the statute), you would not be able to obtain custody of the child, but you might be able to make a case for "in loco parentis" visitation by showing that you have essentially had a parent-child relationship for a significant portion of her life. I recommend you speak with an attorney to discuss this process and determine your best course of action.

Barbara Fontaine · Answer

This is hard to answer.  You never adopted the girl, so you have no legal rights.  Maybe he will let you visit with her sometimes.  It is too bad, as she is losing a lot.  Maybe you can have someone talk to him about this.  I wish you well.

Glenn Tanner · Answer

In Washington, zero.

Dennis P. Mikko · Answer

As a step parent, you do not have any rights to your step children.  It is most unfortunate that your husband will not let you have contact with her since you were a major influence in her life.

Robert De Groot · Answer

You have no rights in the step daughter. The husband, however, should recognize how important you are to her. The other kids should be taken into consideration as well.

Cassandra Savoy · Answer

You can always contest custody.  You will need to prove that it is not in the child's best interest to remain with the Dad.  You can probably get visitation with the child.

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