Legal Blog

Stepparent Visitation – The Basics

While California has a strong public policy favoring custody to either or both parents, a stepparent might still have a case for rights to visitation with a minor child. A number of Family Code sections speak directly to this issue.

As a baseline, California Family Code section 3040 states the order of preference that a court should grant custody.[i] As a first preference, a court should grant custody to both parents jointly or to either parent. As a matter of public policy, joint custody of a child to both natural or adoptive parents and sole custody to either natural or adoptive parent is preferred to any form of nonparent custody.

That said, Family Code section 3041 specifies that a court can make an order granting custody to a person or persons other than a parent, over the objection of a parent, if it makes a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.

Family Code section 3100 allows a court to grant reasonable visitation rights to any person who has an interest in the welfare of a child. Family Code section 3101 specifically provides that a court may grant reasonable visitation to a stepparent if the same would be in the best interest of the child.

Thus, the first inquiry will generally be whether stepparent visitation is in the best interest of the child at issue. The next question will generally be whether denying stepparent visitation will result in a detriment to the child.[ii]

If an ongoing child custody case has already been opened between the biological parents, a stepparent need only be joined as party to that case. Generally, however, if a stepparent is seeking visitation rights, he or she will have to open a new case in which the stepparent and the biological parent(s) are parties.

Given the strong public policy favoring custody to parents, a stepparent seeking visitation with a minor child will likely face an uphill battle. As such, he or she is likely best off hiring an attorney as soon as possible.

[i] Family Code section 3040, subsection (a), provides: “Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020 :

(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080 ) or to either parent.  In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020 , and shall not prefer a parent as custodian because of that parent’s sex.  The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.

(2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

(3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.”

[ii] See Adoption of Daniele G. (2001) 105 Cal. Rptr. 2d 341.