custody of stepchild

My husband and I have been seperated for 3yrs. after being married for 2 yrs. He had a daughter from a previous relationship that I Did and still do consider my daughter. Kortne and I were very close and she still considers me her "mother".Since our seperation he has only allowed me to see Kortne a few times.I would love to have regualar visition with her but I belive the only way that will happen is if I sue him for visitaion rights to her.So my question is, Can I sue him for visition,and if so what is the likelyhood of my being granted visitaion with her? Thank You.

[I AM ALWAYS LIABLE]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by photomomoftwo:
[b]My husband and I have been seperated for 3yrs. after being married for 2 yrs. He had a daughter from a previous relationship that I Did and still do consider my daughter. Kortne and I were very close and she still considers me her "mother".Since our seperation he has only allowed me to see Kortne a few times.I would love to have regualar visition with her but I belive the only way that will happen is if I sue him for visitaion rights to her.So my question is, Can I sue him for visition,and if so what is the likelyhood of my being granted visitaion with her? Thank You.[/b]<HR></BLOCKQUOTE>


My response:

A stepparent's visitation request may be heard in a marital action between the stepparent and a natural or adoptive parent In a marital action (dissolution, legal separation or nullity), the court may grant reasonable visitation to a stepparent (meaning a person who is a party to the marriage that is the subject of the action, with respect to a minor child of the other party to the marriage) . . . provided stepparent visitation is determined to be in the minor child's best interest. Stepparent visitation rights are secondary to a "birth parent's" custody or visitation rights. ("Birth parent" means the minor child's biological or adoptive parent. A birth parent who is not a party to the action may not have an opportunity to be heard in opposition to a stepparent's visitation claim. Therefore, stepparent visitation may not be ordered to the extent it would conflict with the custody or visitation of a birth parent "who is not a party to the proceeding."

In deference to the fundamental right of parenting and the strong policy preference for the rights of parents over nonparents, the principles applicable to competing custody claims between parents and nonparents apply equally to competing visitation claims between parents and nonparents. The Code "was not intended to disturb the longstanding inclination of California courts to defer to the jointly expressed wishes of the parents except in the most unusual and extreme cases." [Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1520, 280 Cal.Rptr. 862, 867 (emphasis added)] It follows that the same two-pronged findings required to sustain an order granting nonparent custody over the parents' objection are required as well to support an award of nonparent visitation over the parents' objection: i.e., except where the Legislature has otherwise specifically provided, nonparent visitation rights may not be granted over the joint opposition of parents having custody merely upon a finding such visitation would promote the child's best interest. Where the parents are unified in opposition, nonparent visitation may be allowed only upon (i) a "best interests" finding and (ii) "clear and convincing evidence" that denial of nonparent visitation would be detrimental to the child. [Marriage of Gayden, supra, 229 Cal.App.3d at 1520, 280 Cal.Rptr. at 867; Guardianship of Z.C.W. (1999) 71 Cal.App.4th 524, 528, 84 Cal.Rptr.2d 48, 51]

As explained above, the child's "best interest" is the paramount consideration steering the court's decision in a custody dispute between the parents. But an additional criterion applies when the court is considering a custody order in favor of a nonparent in California Family Code Section 3021 custody proceedings.

Before making an order granting custody to a nonparent without the parents' consent, the court "shall make" the following two-part findings (Ca Fam § 3041):

· Granting custody to a parent would be detrimental to the child; and

· Granting custody to the nonparent is required to serve the child's best interest. [Ca Fam § 3041; Guardianship of Stephen G. (1995) 40 Cal.App.4th 1418, 1423, 47 Cal.Rptr.2d 409, 412; Guardianship of Jenna G. (1998) 63 Cal.App.4th 387, 391, 74 Cal.Rptr.2d 47, 49--requiring proof of parental inability to properly care for child and resulting detriment to child if he or she remains with parent]

The additional "detriment" factor accommodates California's policy of "parental preference" in deference to the "fundamental right" of parenting (In re B.G. (1974) 11 Cal.3d 679, 697-698, 114 Cal.Rptr. 444, 456-457).

Good luck to you.

IAAL




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