Q&A: Step-Parent Visitation Rights: Does Former Spouse Have Legal Custody/Visitation Rights?

Step-Parent Visitation Rights: Does Former Spouse Have Legal Custody/Visitation Rights to Ex’s Kids Who She Raised From Birth But Did Not Adopt?

 

I think the short answer to this is yes.

But it depends on where you live. Because, normally, I would have been inclined to say no. I would have been inclined to argue that most courts  would probably rule that the kids are not your biological children and you did not adopt them so you have no legal right to custody or visitation.

However, that is very yesteryear thinking. A lot has changed in the world and in the way the courts interpret the rules as they pertain to family law and so don’t be surprised if the court rules against you in a situation like this where you are the biological parent and the former spouse is a step-parent who never legally adopted the kids but who want visitation or even custody of your kids.

Ever heard of a concept called an “equitable parent”? If you are the non-biological parent, I think it is possible under some circumstances – indeed under many circumstances – to raise this argument and to win it.

Certainly in many states, even when you are not a “legal parent” you can bring a petition for custody or visitation rights based on the fact that you are the primary care giver for the child, the legal parent’s unfitness, you raised the child for a significant portion of his or her life, etc. You don’t even have to be a “step-parent.” Nowadays its all about best interest of the child and who is the care giver for the child – or who is an “equitable parent” of the child.

Not all states allow non legal parents to petition for custody and visitation, however, so you will have to do your research to see if you live in a state that allows a non-legal parent to petition for child custody or visitation.

In California, and I believe New York, for sure, there is such a thing as an “equitable parent,” (or an equivalent doctrine). Recently, for instance, the California courts ruled against Mel B when she tried to stop her ex husband Stephen Belafonte from seeing his step daughter, a little girl named Angel whose father is actor Eddie Murphy. The court ruled that Stephen Belafonte could petition for visitation even though he never officially adopted the little girl.

Other states allow step parents to petition for custody and visitation as well. It is not just New York and California. What you need to be thinking about are the following types of issues and questions:

  1. You are the only father/mother the child has ever known
  2. You have been the child’s main caregiver
  3. You have provided the financial support for the child
  4. You have held yourself out as the child’s parent with the endorsement of the legal parent
  5. The child calls you “mommy” or “daddy”
  6. The child uses your last name.
  7. People, including neighbors and school personnel see you as the child’s parent
  8. The biological parent encouraged a parent/child relationship with you and the child and others can testify to this.
  9. You share a bond with the child and the child’s emotional equilibrium will benefit from continuing this bond.
  10. The biological parent is unfit and you are the only fit parent the child knows.

There are obviously other variables that the courts can consider on a case by case basis and remember that, as stated previously, not all states will allow a non-parent to petition for custody and visitation. So you have to first speak with a lawyer where you live to see what rights you have. Keep in mind that the state with “home state” jurisdiction over the child may be different from where you or the child currently resides and it is that state’s laws that generally would be controlling.

 

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