Can a stepparent contest for custody or child visitation in California?

Full question:

I have been married to my husband for about 5 years. I had two kids in my previous marriage and not in this marriage. Our relationship has turned quite sour and we are planning to live separately for some time. However, he wishes to spend time with the kids. Can he file for custody or visitation time, even if they are his step children?

• Category: Divorce
• Subcategory: Visitation
• Date: 04/07/2025
• State: California

Answer:

Per the law, stepparents are considered strangers to their stepchildren because they are not biologically related to them. The laws that determine the rights of natural parents with regard to child custody rights cannot be made applicable to stepparents. There are two ways that a stepparent can gain child custody rights to a stepchild:

1. The stepparent may marry or enter into a legal domestic partnership with one of the stepchild’s biological parents.
2. The stepparent may formally adopt the stepchild.

In most states, a divorce or family court judge decides visitation or custodial rights based on the best interests of the child. In California, Cal Fam Code § 3100 reads:

 “(a) In making an order pursuant to Chapter 4 (commencing with Section 3080), the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.”

Also, Cal Fam Code § 3101 grants visitation right to stepparent and gives definition to ‘stepparent’. It reads:

“(a) Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child.
  (b) If a protective order, as defined in Section 6218, has been directed to a stepparent to whom visitation may be granted pursuant to this section, the court shall consider whether the best interest of the child requires that any visitation by the stepparent be denied.
  (c) Visitation rights may not be ordered under this section that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
  (d) As used in this section:
 (1) "Birth parent" means "birth parent" as defined in Section 8512.
 (2) "Stepparent" means a person who is a party to the marriage that is the subject of the proceeding, with respect to a minor child of the other party to the marriage.”

When it comes to stepparent visitation rights, the courts have to deal with the conflict that might arise with the custodial rights of a biological parent. Under Cal Fam Code § 3101(c), stepparent visitation rights may not be granted if it conflicts with the right of child custody or visitation of a biological parent who is not a party to the stepparent visitation proceeding. This means that the family law court has full discretion to deny a stepparent visitation rights if granting of such visitation rights would interfere with the custody rights of a biological parent. However, it does not mean that the courts cannot devise a stepparent visitation order that is agreeable to all parties or make an order that allows a stepparent to have visitation rights, without prejudicing the rights of the biological parents.