Today, many children are part of blended families. While this is a positive thing, unfortunately, when the current family is torn apart by divorce, there are a number of issues which must be confronted, including whether or not the non-biological parent should have rights to claim custody of a child.
You should understand that California, like several other states, has legislated portions of The Uniform Parentage Act (2017) which provide a legal framework for defining a parent-child relationship. Therefore, it is important to understand what rights are granted to a parent who may not be biological.
New Relationships Resulted in New Definitions
Traditionally, when a man and woman married and had children, the only disputes over custody existed between them. However, today, there are other relationships in which a parent may not be biologically related to a child. Some of these situations include:
- Same-sex couples — today, more same-sex couples are opting for adoption or having children with a surrogate. In these instances, the child may not be related to either parent. However, the parent-child relationship is well established in these cases and either partner may be considered fit to have custody of the child.
- Stepparent relationships — in general, a stepparent would not be entitled to custody of a child unless there was an instance where it was determined to be in the best interest of the child. However, a stepparent may have the right to petition the court to be granted visitation rights. In the case where a biological parent loses their life, the stepparent may petition to obtain custody of the child.
- Adopted child relationships — when a child is adopted, either by a woman or a man, the relationship is presumed to be identical to the relationship of a biological parent. Generally, to adopt a child, the biological parent (or parents) must surrender all rights or that child. Therefore, an adoptive parent(s) would have the same custody rights as a biological parent.
These are just a few of the instances where parenting is redefined, and when non-biological parents factor into custody decisions. Keep in mind, in all cases, courts in California are legally bound to make their decision based on the best interests of the child.
Amendments to California Family Code
One important thing to remember is changes which were made to the California Family Code during the 2013 legislative session. Specifically, the Code now addresses custody by non-biological parents. Senate Bill No. 274 states allowed for instances of a child recognizing one or more adults as parents. In these csaes, the court would take these adults into consideration when it is in the best interest of the child. The court can make a determination of when a non-biological parent may participate in custody of a minor child.
For those who cannot claim to be biological parents, if you believe that you can offer the most stable environment for a child, you can see guidance from a family law attorney who has experience handling cases involving custody and non-biological parenting. This is particularly true if you are concerned about the well-being of the child. Talking to an experienced family attorney and explaining your relationship with the child, the child’s relationship with the current custodial parent, and others in the household can be helpful. Remember, the courts will always err on the side of the best interests of the child.
Rights of Non-Biological Parents and Visitation in California
It is important to understand how California deals with visitation rights. While they are different than custodial rights — where the child may live part or full time — they are worth understanding in the context of developing a parenting plan. There are other adults in a child’s life who may be entitled to visitation rights. These may include:
- Stepparents — if the court determines the relationship between a stepparent and child is beneficial to the child, they may grant visitation rights.
- Grandparents — when couples divorce and the relationship is fractured, it impacts grandparents as well. In some cases, the non-custodial parent may have only supervised visits, or in extreme cases, no visitation rights. In these instances, the only relationship which could be maintained with a grandparent would be for the grandparent to be granted some visitation rights.
- Other family members — while less common, it is possible for other adult children, aunts and uncles, or other family members to request the court consider granting them visitation rights.
These situations may make developing a parenting plan more difficult for couples. As a biological parent going through a divorce, you already have a lot to consider. If you have any reason to believe there will be a request for visitation from someone other than your spouse, or if you anticipate a petition for custody by a non-biological parent, it is imperative you inform your attorney of this potential.
Children’s Wishes May Also be Considered
One of the issues which the court may take into consideration is the wishes of the child. When a child is over the age of 14, they may express an interest in living with one parent over another. There is nothing which prohibits a child from expressing an interest in living with a non-biological parent. The court is under no obligation to act on the child’s wishes, but it is something you must consider.
There may be instances when the court assigns a third-party such as an advocate, trained social worker, or other adult to work with the child. Unless the court deems it appropriate, the child is not required to express their wishes in court, instead the advocate would present the information on the child’s behalf.
Contact an Experienced Child Custody Lawyer
Regardless of the situation you are in, whether you are currently in a custody dispute with your spouse, you are a non-biological parent who wishes to petition for custody, or you have an interest in petitioning for visitation rights, the first step you need to take is getting sound legal advice.
When you need legal advice about what steps you can take to address custody or visitation issues, contact an experienced lawyer. At our firm, your case will be handled by a lawyer who is a Certified Specialist in Family Law. Please call our San Diego office at 619-724-4148 or send us an email.