Visitation Rights of Step-parents

Courts sometimes award stepparents visitation rights based on the "best interest" standard that dominates child custody and welfare decisions. Twenty-three of the 50 states statutorily authorize stepparent visitation. In ten of these (California, Delaware, Kansas, Louisiana, New Hampshire, Ohio, Oregon, Tennessee, Virginia and Wisconsin) stepparents are explicitly named as having the right to request visitation. In 13 other states (Alaska, Connecticut, Georgia, Hawaii, Illinois, Maine, Michigan, Minnesota, Nebraska, New York, Texas, Washington and West Virginia) stepparents are considered "interested third parties." Five others (Arizona, Idaho, Indiana, Kentucky, Maryland and Utah) permit stepparents to petition for visitation.

Parents have a constitutionally protected right to determine a child’s "companionship, care, custody and management." Very often, however, courts award visitation rights when a person is married to a custodial parent who dies. When this happens, custody of the child usually reverts to the child’s other natural parent, but the stepparent may appeal for visitation rights. Courts also grapple with the thorny question of awarding stepparent custody of a child. In a divorce of a stepparent and the custodial parent, the stepparent may be granted custody when the facts demonstrate that the child "would not benefit from being the custody of the natural parent."

Most legislatures and courts have ruled, however, there is a strong presumption in favor of the natural parent in dispute over a child with a non-parent, including a step-parent. In these cases, even the expressed wishes of a child to remain with a stepparent are subordinate to the right of a parent to his or her child.



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