Stepparent Visitation Rights

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 What Are Visitation Rights?

Visitation rights are rights that one parent receives after a divorce or separation to visit, or see, their child. The terms of the visitation will be outlined in an agreement called a visitation schedule.

In addition to a detailed schedule regarding visitation, these agreements typically contain:

  • The child’s primary residence;
  • Permitted activities; and
  • Instructions for modifying the agreement.

There are two general categories of visitation, supervised and unsupervised. Supervised visitation allows the individual to spend time with their child while being supervised by a neutral third party.

Unsupervised visitation is the most common type. It allows the parent to spend time with their child without being supervised.

Can Step Parents Get Visitation Rights?

When the parents of a biological child divorce, that child goes through a very stressful and confusing time. In some cases, they may adjust poorly to the changes.

Stepparents may be able to help the child adjust to the divorce by providing a loving and supportive relationship. In many cases, step children view their step parents as their only parents and may lovingly refer to them as mom and dad.

After building a strong relationship, however, a stepparent and stepchild may be separated if the biological parent and stepparent divorce. There are certain stepparent rights, which will be discussed below.

Do I Have Legal Rights as a Step Parent?

When a stepparent is still married to a child’s biological parent, they may enjoy many of the privileges associated with parenting, including:

  • Spending time with the child;
  • Cooking for them;
  • Driving them to school; and
  • Taking them to various appointments.

However, the stepparent only enjoys the privileges by virtue of being married to the biological parent. They do not, in fact, have any legal rights to the child.

When the step parent divorces the biological parent because they do not have the legal rights, they are not entitled to anything. In other words, they are not automatically entitled to custody or visitation rights.

In addition, the stepparent is not entitled to make any legal or medical decisions on behalf of the child, even if they believe they are in the child’s best interest.

Do Step Parents Have Visitation Rights?

The United States Supreme Court held in Troxel v. Granville that a biological parent has a fundamental and constitutional right to parenting. These rights include such things as:

  • Controlling the child;
  • Deciding custody issues; and
  • Dictating visitation schedules.

A stepparent does not have any rights if and when the biological parent objects. In the case noted above, the stepparent became close with the stepchildren during the marriage.

When the biological parent and stepparent divorced, they agreed upon a visitation schedule for the stepparent. Although the stepparent wanted more visitation, the biological parent would not allow it.

This is based on the parental preference rule that favors biological parents as being best suited to make decisions for the children. This decision is binding in all state and federal courts, meaning those courts must follow this rule.

Although this case may sound disparaging, the biological parent and stepparent can still agree to a visitation schedule. The best interests of the child is the standard that is used to determine custody and visitation issues for parents and other guardians.

The best interests of the child standard is also used to determine visitation and custody for parents as well as other guardians. This standard is used to determine whether a stepparent will be permitted to have visitation or other rights as well.

There are certain factors that may carry more weight for allowing stepparent visitation, including if the stepparent:

  • Was married to the biological parent for a long period of time;
  • Financially supported the child; and
  • Had a close relationship with the child.

In addition, a stepparent may be more successful in their petition in cases where the biological parents are deceased. It is important to note that the child’s other biological parent may not take precedence if the court determines that they are unsuitable as a primary caregiver.

If the relationship between the stepparent and child is good and provides stability and support for the child, it will likely be considered to be in their best interests to maintain a relationship. In these instances, the stepparent is more likely to be granted visitation or other rights.

What Is the Child’s Best Interests Standard?

In most family law cases involving children, the court makes decisions concerning the child based on the child’s best interest standard. This standard is used when finalizing child custody or visitation agreements.

In addition, this standard takes precedence over some state child custody laws. The factors a court will consider when applying the standard, however, may vary by state.

The purpose of the child’s best interest standard is to have a method for the law to ensure that a vulnerable class of individuals, children, are provided the utmost protections. Therefore, according to this standard, an individual who takes custody of a child must be able to provide them with a stable home environment and be able to ensure their safety and well-being.

In order to determine whether a parent qualifies for custody under this standard, a court will consider several factors, including, but not limited to:

  • The ability of the parent to care for the child;
  • The relationship that the parent has established with the child; and
  • Which home would be better suited for the child’s needs or adjustment.

Step Parent Visitation Laws by State

As noted above, the Troxel decision is binding on state courts. This means that if there is a visitation case that is taken to state court, this decision will determine the outcome.

However, if there is not a court case over the issue, there are laws regarding stepparent visitation that vary by state. There are more than 20 states that authorize stepparents to petition for visitation.

In certain states, stepparents are name in the laws as being able to petition for rights, including:

  • California;
  • Delaware;
  • Kansas;
  • Louisiana;
  • New Hampshire;
  • Ohio;
  • Oregon;
  • Tennessee;
  • Virginia; and
  • Wisconsin.

In other states, a stepparent is considered to be an interested third party who may request visitation, including:

  • Alaska;
  • Connecticut;
  • Georgia;
  • Hawaii;
  • Illinois;
  • Maine;
  • Michigan;
  • Minnesota;
  • Nebraska;
  • New York;
  • Texas;
  • Washington; and
  • West Virginia.

There are also states that do not have statutes that allow for stepparents to petition for visitation. It is important to note, however, that even if a state does not have these laws, a state court may still grant visitation.

What Is a Child Visitation Agreement?

A child visitation agreement is an agreement that is signed by both parents that outlines the visitation schedule of the biological parent and stepparent. A child visitation agreement may govern many issues, including:

  • Location of visits;
  • Weekends;
  • Weekdays;
  • Holidays;
  • Summertime or other school breaks;
  • Birthdays; and
  • Out-of-town vacations.

These agreements may be entered into ahead or time or they may be more flexible, depending on the relationship between the parents. It is important to remember that a flexible agreement will give the child the most peaceful and seamless transition from a two-parent household to a custody agreement.

Do I Need a Lawyer to Enforce Visitation?

If you are a stepparent who has any issues, questions, or concerns related to visitation with your stepchild or stepchildren, it is important to consult with a child visitation lawyer. Although you have not legally adopted your stepchild may technically have no legal rights to visitation, your lawyer can help you petition the court or negotiate with the biological parent to obtain those rights.

Your attorney can help draft a child visitation agreement and can help you enforce the child visitation agreement if the biological parent violates it.

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