Step-parents are in a difficult situation when it comes to seeking custody of children in Family Court. Courts give the biological parents the right to decide what parenting plan is in the best interest of the child. Courts can only override the wishes of the parents in the most unusual and extreme cases. This preference exists to protect the constitutional rights of the parents to decide how to raise their children. This may leave a step-parent without much hope of getting a judge to award them visitation. A recent case in California, Chalmers v Hirschkop, gives an example of what this might look like.
The case involves a dispute between the biological parents of a young girl and the former female domestic partner of the mother. Tiela Chalmers and Michael F are the child’s biological parents. Lisa Hirschkop became romantically involved with Tiela Chalmers and they later registered as domestic partners. In 2008, in the court action for dissolution of the domestic partnership, Lisa asked the court for visitation with the child.
Tiela and Michael had worked out a parenting plan at that time that included some visitation for Lisa. The judge declined to order visitation because the biological parents are presumed to know what is in the best interests of the child and there was no indication that they were unfit. For a judge to order that a non-parent have visitation of a child over the wishes of the biological parents would be in violation of the parents’ constitutional rights.
Though Lisa was given time with the child when she requested visitation in 2008, this was voluntarily provided by Michael and Tiela. The judge declined to make an order that would require Tiela and Michael to give Lisa access to the child. Because there was no order in place, there was nothing to prevent Tiela and Michael from later reducing the amount of time Lisa had with the child in the future as they later did.
The Court of Appeal noted that at the time when the judge first declined to order visitation between Lisa and the child, she could have appealed that decision. Lisa did not appeal the 2008 decision and so she did not return to court again until 2011 when Tiela and Michael decided that it was best for the child to not see Lisa as much as they had originally planned.
When Lisa returned to court, the trial court denied her request for visitation and reminded Lisa that the wishes of the parents are presumed correct. The Court of Appeal considered Lisa’s 2011 request a request to modify the 2008 order in which the court denied her request for visitation rather than a new request for visitation.
While this may seem like a minor distinction, parties are usually not permitted to request the same thing from court multiple times. When a judge orders a certain visitation schedule and a party comes back to court requesting a change, it is considered a request to modify the original order not a new request. Parties need to be able to count on orders once they are made without worrying that someone will ask the court to decide the same issue multiple times.
The main question before the Court of Appeal was: Is there any legal basis for allowing a step-parent to request modification of an earlier order that denied custody?
The court looked at California Family Code Section 3101(a), which authorizes a court to grant step-parent visitation if it is found to be in the best interest of the child and noted the lack of authority for the court to modify an order made under that section. The court explained that every other area where modification is allowed, the Family Code states clearly that a parent may request modification of an order. California Family Code Section 3101 does not contain any similar language authorizing modification.
The Court of Appeal answered the question above with a no. Only biological parents have a constitutional right to raise their children. Thus, a step-parent is not likely to get visitation unless one of the biological parents is for some reason not in the picture. Lisa might have had more rights to visitation if legislation proposed last year in California had allowed for a child to have more than two legal parents.
It is not clear how things might have been different for Lisa if she had taken the step to adopt the child. It sounds like the initial plan was for Tiela and Michael to raise the child together. They were fine with Lisa raising the child while she was together with Tiela but once they were separated, things were much more complicated. Interestingly enough, the Court never mentions anywhere that Tiela and Michael married. The child was conceived via artificial insemination and yet Michael insisted that he have custody over the child.
At first glance it may seem like this case is an indication of the law’s inability to cope with modern same-sex relationships. According to The Court of Appeal the result would have been the same if Lisa had been a man who Tiela married and later divorced. I feel for Lisa here because she felt a connection with the child and now has no way to seek visitation from the court. On the other hand, I get the feeling that Tiela and Michael wanted to try to work with Lisa to figure out a new schedule for visitation. This case serves as a reminder that insisting on your rights isn’t always going to help you get what you want.
Because courts are unable to order visitation for a step-parent over the wishes of the legal parents except in the most unusual and extreme cases, parents in Lisa’s situation don’t have a lot of bargaining power to demand visitation. While the requests Tiela and Michael made to Lisa in order for her to continue to see the child seemed unreasonable to her, going along with them was likely her best hope for maintaining some visitation.
If you are involved in a custody dispute, you should speak with an attorney to determine the best course of action. Call Paul D. McGuire at the Law Office of Paul D. McGuire to schedule a free consultation.