Stepparent Cannot Request Modification of Court Order Denying Visitation under California Law

1412652_couple_with_a_child.jpgSan Diego stepparents struggling with child custody and visitation matters are not treated the same way as biological parents, under state law. Biological parents are given the authority and responsibility to devise a “parenting plan” that they believe is in the best interests of the child. Of course, the court must approve the plan, but a stepparent’s wishes with respect to custody and visitation have no legal bearing on the process. If you are sorting through a child custody and visitation dispute, the best way to proceed is to consult with a local, experienced Family Law attorney who can vigorously protect your family’s rights.

A recent California court decision exemplifies the difficulties that stepparents can face when seeking to assert their rights in a child visitation matter. Tiela Chalmers and Michael F. agreed to have a baby together by artificial insemination and further agreed to joint legal and physical custody of their child. They are the biological parents of Eliana F. When Eliana was born, Tiela and Lisa Hirschkop were in a relationship and had registered as domestic partners. Between 2001 and 2006, Lisa was a stepparent to Eliana. The couple separated in 2006 and Tiela filed a petition for dissolution of the domestic partnership, which was granted in 2007. A short time later, Lisa filed a motion for stepparent visitation under California Family Code Section 3101.

Tiela opposed the motion and Michael filed a declaration in support of her opposition to the motion. The biological parents had chosen a parenting plan that gave Lisa a limited amount of visitation with Eliana. She asked the court to increase the number of hours per week with the child. In 2008, the court denied Lisa’s request, noting that she was asking for certain legal rights that are afforded to parents, and that she is not a legal parent of Eliana. The court emphasized that as parents, Tiela and Michael have the responsibility and duty to make decisions that they jointly determine are in the best interests of the child. The court refused to step in to alter a decision made agreeably by both parents, especially in light of the fact that Lisa had failed to raise any issue of detriment to the child. Lisa did not appeal the 2008 decision
In 2009, Tiela and Michael decided to reduce Lisa’s visitation time with Eliana. Lisa filed a motion for stepparent visitation and sought to modify the 2008 order denying her visitation. She also requested that Eliana be permitted to testify during the hearing. The court denied her motion and rejected her request. Lisa appealed.

The question before the court of appeals was whether an order denying a stepparent visitation rights can be modified. The court held that it cannot be modified under the circumstances. Under section 3101(a), courts are authorized to grant stepparents visitation if it is found to be in the best interests of the child, but there is no similar authority to modify an order made under that section. The court believed this omission by the Legislature was not unintentional.

Here, the court stated that only biological parents have a constitutional right to raise their kids. Perhaps if Lisa had adopted Eliana, things would have been different. Child custody and visitation laws in California can be complicated, depending on the family situation.

If you have questions about child custody and visitation matters, you are encouraged to contact Doppelt & Forney. Mr. Doppelt is an experienced family law attorney representing parents for more than 20 years in Southern California. Doppelt & Forney serves clients in Linda Vista, Encinitas, Scripps Ranch, San Diego, and throughout Southern California. For a free consultation with a dedicated and experienced family lawyer, contact Doppelt & Forney through the law firm’s website or give us a call toll-free at (800) ROY IS IT (769-4748).

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