Stepparent’s Right to Request Custody or Visitation
References to statutes and pertinent state specific cases involving the rights stepparents have to request the court for child custody or visitation rights.
(1) Alabama: No statute. Shoemaker v. Shoemaker, 563 So. 2d 1032 (Ala. Civ. App. 1990) (there is no right, by statute or common law, for visitation with stepchild).
(2) Alaska: Alaska Stat. 25.24.150(a) (Michie 1995) (provides standing for custody rights to third parties on divorce, separation, or death of parent). Carter v. Broderick, 644 P.2d 850 (Alaska 1982) (court may grant visitation to stepparent who stands in loco parentis to child).
(3) Arizona: No statute. Olvera v. Superior Court, 168 Ariz. 556, 815 P.2d 925 (Ct. App. 1991) (trial court lacks jurisdiction to grant custody to stepparent); Bryan v. Bryan, 132 Ariz. 353, 645 P.2d 1267 (Ct. App. 1982) (stepparent who stands in loco parentismay be awarded visitation rights; note, however, that in Finck v. O’Toole, 179 Ariz. 404, 880 P.2d 624 (1994), the Supreme Court of Arizona impliedly disapproved of Bryan’s holding that the superior court has authority to award visitation to a stepparent).
(4) Arkansas: No statute. Stair v. Phillips, 315 Ark. 429, 867 S.W.2d 453 (1993) (stepparent has no right to custody of stepchild after divorce); Stamps v. Rawlins, 297 Ark. 220, 761 S.W.2d 933 (1988) (interpreting Ark. Code Ann. 9-13-101, which provides that court can award custody of "child of marriage," court held that it could award custody of stepchild to stepparent, but that there was a natural parental preference in such a custody dispute).
(5) California: Cal. Fam. Code 3040(3), 3041 (West 1994) (authorizing nonparent custody based on finding that an award of custody to parent would be detrimental to child and award to nonparent would serve best interests of child); Cal. Fam. Code 3101 (West 1994) (specifically recognizing stepparent visitation on divorce or death of parent). In re Marriage of Hinman, 6 Cal. App. 4th 711, 8 Cal. Rptr. 2d 245 (1992) (court had authority to award custody to stepparent, estopping natural mother from denying that children were "of the marriage" where she so claimed in pleadings); Goetz v. Lewis, 203 Cal. App. 3d 514, 250 Cal. Rptr. 30 (1988) (court does not have jurisdiction in divorce proceeding to determine custody of child not of the parties, but may, by statute, grant visitation rights); In re Hirenia C., 18 Cal. App. 4th 504, 22 Cal. Rptr. 2d 443 (1993) (former female cohabitant of preadoptive mother had standing to request visitation where child had been placed with both women as foster parents prior to adoption).
(6) Colorado: Colo. Rev. Stat. 14-10-123 (1987) (nonparent has standing, under state provision of Uniform Marriage and Divorce Act, to assert custody of child where he or she has had custody of the child for six months). In re Custody of C.C.R.G., 872 P.2d 1337 (Colo. Ct. App. 1993) (court could consider stepparent’s claim to custody under provisions of Uniform Marriage and Divorce Act); In re Marriage of Dureno, 854 P.2d 1352 (Colo. Ct. App. 1992) (trial court may grant visitation privileges to stepparent where stepparent has acted in loco parentis).
(7) Connecticut: Conn. Gen. Stat. Ann. 46b-57 (West 1995) (provides standing to any interested third party to intervene in custody dispute, establishing jurisdiction in the superior court over any minor child of either or both parties); Conn. Gen. Stat. Ann. 46b-59 (West 1995) (provides jurisdiction to grant visitation rights to any person on divorce). Patrell v. Ayers, 5 Conn. L. Rptr. No. 10,249 (Super. Ct. 1991) (person who is not biological, adoptive, or foster parent does not have standing to seek custody; statute applies only in dissolution, annulment, or separation); Temple v. Meyer, 208 Conn. 404, 544 A.2d 629 (1988) (denying visitation rights to stepfather, but holding that only relevant criterion was best interests of child).
(8) Delaware: Del. Code Ann. tit. 13, 733 (1996) (authorizes court to award custody to stepparent based on child’s best interests).
(9) District of Columbia: No statute.
(10) Florida: No statute. O’Dell v. O’Dell, 629 So. 2d 891 (Fla. DCA 1993) (court had no jurisdiction to grant stepfather visitation rights); Meeks v. Garner, 598 So. 2d 261 (Fla. DCA 1992) (stepfather had no right to claim visitation or custody of stepchild after custodial mother died); Music v. Rachford, 654 So. 2d 1234 (Fla. DCA 1995) (lesbian cohabitant cannot pursue custody of child); Taylor v. Kennedy, 649 So. 2d 270 (Fla. DCA 1995) ("psychological father" who had lived with natural mother for much of last six years could not assert right to visitation with child).
(11) Georgia: Ga. Code Ann. 19-9-1, -2 (Supp. 1996) (court may place custody with a third party on divorce or death of parent). Howell v. Gossett, 234 Ga. 145, 214 S.E.2d 882 (1975) (in contest between father and stepfather after death of mother, stepfather must show that father is not a fit and proper person to have custody).
(12) Hawaii: Haw. Rev. Stat. 571-46(2) (Supp. 1995) (custody may be awarded to persons other than the mother or father, where such award serves the best interests of the child; person with de facto custody in a stable and wholesome environment is entitled to prima facie award of custody); Haw. Rev. Stat. 571-46(7) (Supp. 1995) (allowing court to grant visitation rights to any person on divorce on showing of best interests of the child).
(13) Idaho: No statute. Stockwell v. Stockwell, 775 P.2d 611 (Idaho 1989) (visitation granted to stepparent under theory of in loco parentis).
(14) Illinois: 750 Ill. Comp. Stat. Ann. 5/601(b)(2) (West Supp. 1996) (state provision of Uniform Marriage and Divorce Act, permitting person other than parent to petition for custody or visitation if the child is not in the physical custody of one of his parents). In re Marriage of Carey, 188 Ill. App. 3d 1040, 544 N.E.2d 1293 (1989) (under Uniform Marriage and Divorce Act, a nonparent, without showing that the natural parent is unfit, may obtain custody of the child if the best interests of the child so dictate).
(15) Indiana: No statute. Caban v. Healey, 634 N.E.2d 540 (Ind. Ct. App. 1994) (affirming visitation to stepmother who had acted as child’s parent for most of child’s life); Collins v. Gilbreath, 403 N.E.2d 921 (Ind. Ct. App. 1980) (court may grant visitation to stepparent on showing of best interests of child over objection of natural parent).
(16) Iowa: No statute. In re Marriage of Halvorsen, 521 N.W.2d 725 (Iowa 1994) (courts do not have authority to grant visitation to stepparent); In re Petition of Ash, 507 N.W.2d 400 (Iowa 1993) (stepparent not entitled to visitation).
(17) Kansas: Kan. Stat. Ann. 60-1610(a)(4)(D) (Supp. 1995) (in dissolution proceedings, court may award custody to stepparent if child is in need of care as defined by child protection laws or if neither parent is fit to have custody); Kan. Stat. Ann. 60-1616(b) (1994) (specifically recognizing stepparent visitation on divorce). In re Osborne, 21 Kan. App. 2d 374, 901 P.2d 12 (1995) (under UCCJA, stepmother had standing to intervene in ex-husband’s custody action with his ex-wife after ex-husband’s death); State v. Taylor, 125 Kan. 594, 264 P. 1069 (1928) (stepchild is child of marriage where stepparent stands in loco parentis, thereby giving court jurisdiction to decide custody of child).
(18) Kentucky: No statute. Simpson v. Simpson, 586 S.W.2d 33 (Ky. 1979) (court may grant visitation to stepparent who stands in loco parentis to child).
(19) Louisiana: La. Civ. Code Ann. arts. 131, 133 (West Supp. 1996) (custody may be awarded to person in whose home child has been living in a wholesome and stable environment); La. Civ. Code Ann. art. 136 (West Supp. 1996) (specifically recognizing stepparent visitation on divorce). McKinley v. McKinley, 631 So. 2d 45 (La. Ct. App. 1994) (stepfather awarded custody of stepdaughter, on finding that her best interests would be served by not separating her from her half-siblings).
(20) Maine: Me. Rev. Stat. Ann. tit. 19, 752(6) (West Supp. 1995) (court may award custody to third party where parent unfit); Me. Rev. Stat. Ann. tit. 19, 214(a), 752(6) (West Supp. 1995) (allowing court to grant visitation rights to any person on separation or divorce on showing of best interests of child).
(21) Maryland: No statute. Evans v. Evans, 302 Md. 334, 488 A.2d 157 (1985) (court may grant visitation to stepparent on showing of best interests of child).
(22) Massachusetts: Mass. Gen. Laws Ann. ch. 208, 28 (West Supp. 1996) (on judgment of divorce, court may award custody to third person if it is in the best interests of the children).
(23) Michigan: Mich. Comp. Laws 722.27(1)(a) (1993) (court may award custody of child to one or more of the parties involved or to others); Mich. Comp. Laws 772.27(1)(b) (1993) (allowing court to grant visitation to any interested person if reasonable).
(24) Minnesota: Minn. Stat. Ann. 257.022(2b) (West 1992 & Supp. 1996) (person having de facto custody of child for two years may petition for visitation). Simmons v. Simmons, 486 N.W.2d 788 (Minn. Ct. App. 1992) (court may enforce visitation rights of stepparent under stipulation in dissolution action).
(25) Mississippi: Miss. Code Ann. 93-5-24(1)(e) (1994) (court may grant custody to nonparent if parent is unfit). Milam v. Milam, 376 So. 2d 1336 (Miss. 1979) (after death of mother, in contest between father and stepfather, the burden is on the stepfather to prove that the father is mentally, morally, or otherwise unfit).
(26) Missouri: Mo. Ann. Stat. 452.375(5)(3) (West Supp. 1996) (when court finds that each parent is unfit, unsuitable, or unable to meet the demands of custody, custody may be awarded to a third party; under these provisions, any person may petition the court as an interested party). In re Interest of G.A.W., 867 S.W.2d 704 (Mo. Ct. App. 1993) (in contest between stepfather and father after death of mother, trial court erred in granting custody to stepfather in absence of finding that child’s welfare would be manifestly jeopardized by father’s unfitness).
(27) Montana: Mont. Code Ann. 40-4-211(4)(b) (1995) (state provisions of Uniform Marriage and Divorce Act, giving standing to person other than parent to petition for custody if child is not in physical custody of one of parents). In re A.R.A., ___ Mont. ___, 919 P.2d 388 (1996) (amendment to Montana’s Uniform Marriage and Divorce Act, under which remarried custodial parent’s spouse may be awarded custody of parent’s child on parent’s death, without termination of the noncustodial parent’s rights, is unconstitutional); In re Marriage of Miller, 251 Mont. 300, 825 P.2d 189 (1992) (stepparent’s only venue for custody of stepchild was child abuse, neglect, and dependency proceedings); Pierce v. Pierce, 198 Mont. 255, 645 P.2d 1353 (1982) (stepfather had no standing in divorce action to request custody of stepchild, and doctrine of equitable estoppel was inapplicable).
(28) Nebraska: Neb. Rev. Stat. 42-364(10) (1995) (in dissolution of marriage, court may include orders relating to children, including placing children with third parties); Neb. Rev. Stat. 42-364(10) (1995) (visitation shall be determined according to the best interests of the child). Cavanaugh v. deBaudiniere, 1 Neb. App. 713, 493 N.W.2d 197 (1992) (court may grant visitation to stepparent, and will enforce contract between parties concerning support of stepchild); Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991) (court has authority to grant visitation to stepparent who stands in loco parentis).
(29) Nevada: Nev. Rev. Stat. 125.480(3) (Supp. 1995) (court may award custody to third parties). Fisher v. Fisher, 99 Nev. 762, 670 P.2d 572 (1983) (stepparent is "concerned person" under Nev. Rev. Stat. 159.044(1) (1996) governing guardianship proceedings, and thus stepparent had standing to assert a claim for guardianship of a child in a divorce proceeding).
(30) New Hampshire: N.H. Rev. Stat. Ann. 458:17(VI) (1992 & Supp. 1995) (establishing best interests of child standard for custody cases and allowing custody to stepparent); N.H. Rev. Stat. Ann. 458.17(VI) (1992 & Supp. 1995) (specifically recognizing stepparent visitation on divorce). Stanley D. v. Deborah D., 124 N.H. 138, 467 A.2d 249, 251 (1983) (stepparent may be given custody on showing it is in best interests of child).
(31) New Jersey: No statute. Klipstein v. Zalewski, 230 N.J. Super. 567, 553 A.2d 1384 (Ch. Div. 1988) (visitation to stepparent granted under theory of in loco parentis).
(32) New Mexico: N.M. Stat. Ann. 40-4-9.1(K) (Michie 1994) (where any person other than parent seeks custody of child, no such person shall be awarded custody absent showing of unfitness of parent). Rhinehart v. Nowlin, 111 N.M. 319, 805 P.2d 88 (Ct. App. 1990) (trial court has authority to grant stepparent visitation with spouse’s child if important to child’s welfare).
(33) New York: N.Y. Dom. Rel. Law 240 (McKinney Supp. 1996) (in action for divorce, court may grant custody to third party, and third party has standing to intervene); N.Y. Dom. Rel. Law 72 (McKinney Supp. 1996) (granting visitation rights to third parties under extraordinary circumstances). In re Carl S., ___ Misc. 2d ___, 637 N.Y.S.2d 607 (Fam. Ct. 1995) (stepfather of children placed in foster care is entitled to seek visitation); Boland v. Boland, 186 A.D.2d 1065, 588 N.Y.S.2d 485 (1992) (stepmother lacked standing to seek visitation with former stepdaughter).
(34) North Carolina: N.C. Gen. Stat. 50-13.1 (1995) (allows any person to file action seeking custody of child). Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994) (visitation statute was not intended to confer upon strangers the right to bring custody or visitation action against parents of children unrelated to those strangers).
(35) North Dakota: N.D. Cent. Code 14-09-06.1 (1991) (authorizes an order for custody to a third party). Seigneur v. Olson, 519 N.W.2d 15 (N.D. 1994) (after death of custodial father, custody awarded to stepmother on showing of "exceptional circumstances" including abandonment by mother).
(36) Ohio: Ohio Rev. Code Ann. 3109.04(D)(2) (Anderson 1996) (custody may be granted to third party on divorce); Ohio Rev. Code Ann. 3109.05.1(B)(1) (Anderson 1996) (specifically recognizing stepparent visitation on divorce on showing of best interests of child); Ohio Rev. Code Ann. 3109.11 (Anderson Supp. 1994) (custody may be awarded to stepparent on death of custodial parent). In re Dunn, 79 Ohio App. 3d 268, 607 N.E.2d 81, 81-82 (1992) (stepmother properly awarded custody of children after custodial father’s death, where evidence showed custody to mother would have "devastating and detrimental effect" on emotional stability of children).
(37) Oklahoma: Okla. Stat. Ann. tit. 10, 21.1 (West Supp. 1996) (authorizing appointment of nonparent guardian following death of custodial parent if it would be detrimental to child for noncustodial parent to have custody). Looper v. McManus, 581 P.2d 487 (Okla. 1978) (court may grant visitation to stepparent on showing of best interests of child).
(38) Oregon: Or. Rev. Stat. 109.119(2) (Supp. 1994) (stepparent in dissolution action may petition for custody or visitation); Or. Rev. Stat. 109.119(2) (Supp. 1994) (specifically recognizing stepparent visitation on divorce). In re Sorensen, 138 Or. App. 80, 906 P.2d 838 (1995) (child’s stepmother could intervene in custody proceeding between child’s parents); In re Shofner, 137 Or. App. 54, 905 P.2d 268 (1995) (court had authority to award stepfather visitation with wife’s child).
(39) Pennsylvania: 42 Pa. Cons. Stat. Ann. Rule 1915.6 (West Supp. 1995) (one who has physical custody of child may intervene in custody proceeding). J.A.L. v. E.P.H., 22 Fam. L. Rep. (BNA) 1543 (Pa. Super. Ct. 1996) (former lesbian partner of woman who conceived and gave birth to child during long-term relationship had standing to pursue "partial custody" of child, where partner stood in loco parentis to child); Walkenstein v. Walkenstein, 443 Pa. Super. 683, 663 A.2d 178 (1995) (stepparent has standing to pursue custody if he or she stands in loco parentis to child); Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 897 (1977) (court may grant visitation to stepparent who stands in loco parentis).
(40) Rhode Island: No statute.
(41) South Carolina: S.C. Code Ann. 20-7-420(20) (Law. Co-op. Supp. 1994) (provides for an award of custody to either spouse or any other proper person).
(42) South Dakota: No statute. Quinn v. Mouw-Quinn, 22 Fam. L. Rep. (BNA) 1492 (S.D. 1996) (court may grant stepparent visitation rights where "extraordinary circumstances" exist).
(43) Tennessee: Tenn. Code Ann. 36-6-101(a) (Supp. 1995) (allows for an award of custody to parent or some suitable person); Tenn. Code Ann. 36-6-303 (Supp. 1995) (specifically recognizing stepparent visitation on divorce). Henderson v. Mabry, 838 S.W.2d 537 (Tenn. Ct. App. 1992) (stepfather granted temporary custody of child after death of custodial mother).
(44) Texas: Tex. Fam. Code Ann. 102.003 (West 1996) (third parties may bring original action for custody of child); Tex. Fam. Code Ann. 102.003 (West 1996) (allowing court to grant visitation to interested parties). Jacobs v. Balew, 765 S.W.2d 532 (Tex. Ct. App. 1989) (stepparent does not have standing to seek custody absent another reason, such as the unfavorable environment provided by the parent).
(45) Utah: No statute. In re Interest of JWF, 799 P.2d 710 (Utah 1990) (stepfather who had legal obligation to support child had standing to assert custody); Gribble v. Gribble, 583 P.2d 64 (Utah 1978) (court may grant visitation to stepparent).
(46) Vermont: No statute. Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23 (1985) (relevant statutes empower court to award custody to stepparent who stands in loco parentis).
(47) Virginia: Va. Code Ann. 20-124.1 (Michie 1995) (court can award custody to person with legitimate interest, including stepparent); Va. Code Ann. 20-107.2 (Michie 1995) (specifically recognizing stepparent visitation on divorce). Kogon v. Ulerick, 12 Va. App. 595, 405 S.E.2d 441 (1991) (common-law right to visitation extends only to parents; note that this case was overruled by statute).
(48) Washington: Wash. Rev. Code Ann. 26.09.240 (West Supp. 1996) (allowing court to grant visitation rights to any person on divorce). In re Marriage of Allen, 28 Wash. App. 637, 626 P.2d 16 (1981) (children not common to parties are nevertheless subject to the court’s jurisdiction to determine custody); Palmer v. Palmer, 42 Wash. 2d 715, 258 P.2d 475 (1953) (court does not have jurisdiction to determine custody of child not common to parties).
(49) West Virginia: W. Va. Code 48-2-15 (1995) (granting visitation to interested third party on divorce of parents). Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989) (court may grant visitation to stepparent on showing of best interests of child).
(50) Wisconsin: Wis. Stat. Ann. 767.24(3)(a) (West Supp. 1995) (provides for an award of custody to a "relative" of child; "relative" of child includes stepparent under Wis. Stat. Ann. 48.02(15)); Wis. Stat. Ann. 767.245(1) (West 1981) (specifically recognizing stepparent visitation on divorce where the stepparent has acted in loco parentis). In re Custody of H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995) (court has equitable power to hear petition for visitation by unrelated person where court determines that person had parent-like relationship with child); Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993) (court was without jurisdiction to grant former stepmother standing to seek visitation, where after custodial father died there was no pending action before the court in which stepmother could intervene; stepparent may seek visitation only in actions for divorce).
(51) Wyoming: No statute.
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