Rights of Step-Parents in Custody and Visitation
The rights of a step-parent to request custody or visitation of a child who is not his or her natural child can be challenging. On some levels, the law treats a step-parent similarly to a natural parent in examining the parent's relationship to the child and his or her significance in the child's life, rather than focusing solely on the source of DNA. Considerations do not end there, however. Before a step-parent can petition for visitation rights (or custody in some circumstances), the hurdle of standing must be mounted.
What is "Standing"?
Standing refers to the rights of a party to be heard by courts on a particular issue. The determination of standing involves consideration of several factors:
- degree of the step-parent's participation at a significant level in the child's life
- length of time the step-parent participated as an actual parent for the child in place of the child's natural parent
- existence of any relationship and emotional ties between step-parent and child
- amount of financial support and assistance provided by the step-parent
- degree of detriment to the child if the step-parent is denied visitation
In most cases, step-parents are deemed not to have access to the divorce proceeding in court. Instead, courts hold that divorce laws, which establish their jurisdiction to adjudicate custody matters within the divorce, do not grant further jurisdiction to hear cases between parents and step-parents over custody. Occasionally, a court will decide such disputes, but with rarity.
Visitation Heard More Readily Than Custody
Despite these challenges, some courts have expressed a willingness to decide visitation matters more readily than custody disputes. One reason is due to the underlying liberal visitation statutes.
Recently, advocates have leaned strongly on their state legislators and legal systems to enact laws granting visitation rights to grandparents, especially in instances of divorce or death of one parent. Grandparent visitation statutes have been enacted in response. Step-parents seek the same rights and protections within the legal system to safeguard their relationships with their children, although a birth relationship or blood line does not exist.
Today, nearly half the states (23) have enacted laws to authorize step-parent visitation. Ten more states expressly granted step-parents rights to seek visitation. Thirteen additional states grant interested third parties rights to request visitation and deem step-parents as fitting within the "interested third party" definition. In the absence of state statutes on point, some courts have held that step-parents may still petition for visitation. Four states, Alabama, Florida, Iowa, and South Dakota, foreclose this right entirely to step-parents.
Legal Standard Applicable to Step-Parent's Visitation Request
Regardless of the state, most courts use the "best interests of the child" test to determine whether to award a step-parent requested visitation. Courts review whether continuing the child's relationship with a step-parent enhances the child's life and improves his or her welfare. If the answer is "yes", visitation is awarded. If there are questions about the fitness of the step-parent, visitation rights may be curtailed or denied.