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THE RIGHT OF A STEPPARENT OR COHABITANT TO REQUEST VISITATION WITH OR CUSTODY OF A STEPCHILD: STANDING

The very first issue a stepparent must face is whether he or she even has standing to request custody or visitation of a stepchild. The question of standing may arise in a variety of judicial forums for resolving custody disputes between parents and non-parents. Guardianship proceedings, habeas corpus proceedings after a parent has died, and the civil child protection system all establish judicial authority to consider the custody of children. Further, in many states, a third party may seek custody of a child if the child has been in the third party's possession for a specified amount of time preceding the filing.

THE STANDARD FOR GRANTING CUSTODY TO STEPPARENT OR FORMER COHABITANT

Once the initial standing hurdle is passed, thereby allowing the stepparent or former cohabitant to press a claim for custody, the next question facing the stepparent is under what standard must the court decide custody: under the "best interests of the child" standard, under a "parental unfitness" standard, or under some other standard?

CONCLUSION

One of the greatest distinctions of family law has been its ability to adapt to new situations as the structures of families have changed. Increasing divorce rates gave rise to no-fault divorce and equitable distribution. The increasing mobility of society gave rise to rules on custodial parent relocation. Rigid rules are not well suited to family law. Perhaps the greatest challenge in the coming years will be the adaptability of family law to the increasing number of nontraditional families. While biological parents have strong, legitimate, and even constitutional rights in raising their children as they see fit, it must be recognized that a child and stepparent, or a child and parent's cohabitant, can form close and loving bonds that should not so easily be ripped assunder. The greatest challenge for family law will thus be to balance the paramount rights of parents with the not easily overlooked rights of stepparents, cohabitants, and children.

STATE LAWS AND CASES

National Legal Research Group, Inc.