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A divorce is always contentious when a couple has to split property they acquired together. It becomes even more contentious when children are involved. When children are involved in a divorce and the parents cannot come to a decision, the court must decide what is in the best interests of the child. The courts decision about what is best comes in a custody and visitation order. But what should happen if the couple divorcing is a child’s parent and the child’s stepparent? Does the stepparent have any right to visitation or custody along with the biological parent?
Fit Parent Wins
It is very rare for a stepparent to be given custody of a stepchild. The general rule is that if the natural parent is a “fit” parent they will retain custody. The courts rarely look to whether the stepparent may be a fit parent as well. However, stepparents are granted visitation rights in some states.
Some state laws specifically grant stepparents the right to petition for visitation during a divorce while other states grant the ability to “all interested third parties” and some others have no legal provision for visitation. Utah may be about to join the list of states that grant stepparents the right to visitation. The state senate has passed a bill that will allow stepparents to ask the court for visitation. The legislature is creating the law because of a state Supreme Court decision last year.
In Jones v. Barlow the Supreme Court of Utah ruled that a woman could not file for custody or visitation with her former same-sex partner’s child because Utah law does not extend any rights to non-biological parents. The legislature recognized that this ruling would extend to stepparents as well as gay couples. If passed, the new law will extend custody and visitation to persons who have a “court-sanctioned” relationship with the child, which includes stepparents.
Best Interest of the Child
In some cases, stepparents may not be too concerned with having custody or visitation rights with their stepchild granted. But the law does not distinguish between a stepparent who has only known the child for a short period of time and a stepparent who has been in a child’s life for as long as the child can remember. Should a stepparent that effectively took the place of that child’s natural mother or father be treated the same as a stepparent who came into a child’s life at 15 and left at 17? It is up to the court to decide.
The custody and visitation order is supposed to be made in the child’s best interest. The power to decide the child’s best interest is vested in a judge who hears the facts and observes the family during the divorce case. While Utah’s law may grant stepparents well deserved rights, it also creates the legal conclusion that visitation with a gay former stepparent cannot be in a child’s best interest. Judges are usually given discretion to determine what is in the child’s best interest. This law will take away a judge’s options.
For more information about about child custody and visitation, contact a local child custody attorney to discuss your specific legal situation.