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THE RIGHTS, DUTIES, AND RESPONSIBILITIES OF STEPPARENTS TO THEIR STEPCHILDREN: CUSTODY AND VISITATIONLaura W. MorganAssistant Editor, Divorce LitigationSecond of Two PartsI. INTRODUCTIONLast month in Divorce Litigation, we discussed the obligation of stepparents to support their stepchildren and what impact this obligation may have on the duty to support prior born natural children.

This month, we will discuss an issue that has proven to be a more troublesome thorn in the side of the judicial system than the issue of mere dollars and cents: the right of stepparents and cohabitants to have custody of or visitation with their former stepchildren. See generally Wendy Evans Lehmann, Annotation, Award of Custody of Child Where Contest is Between Natural Parent and Stepparent, 10 A.L.R.4th 767 (1981); Annotation, Visitation Rights of Persons Other than Natural Parents or Grandparents, 1 A.L.R.4th 1270 (1980); see also Alan Stephens, Annotation, Parental Rights Of Man Who Is Not Biological Or Adoptive Father Of Child But Was Husband Or Cohabitant Of Mother When Child Was Conceived Or Born, 84 A.L.R.4th 655 (1991).

Again, as with the issue of support, for purposes of this article we will consider cohabitants of the custodial parent, both of the opposite sex and the same sex as the natural parent, as being within the rubric of "stepparents."

II. THE RIGHT OF A STEPPARENT OR COHABITANT TO REQUEST VISITATION WITH OR CUSTODY OF A STEPCHILD: STANDINGThe very first issue a stepparent must face is whether he or she even has standing to request custody or visitation of a stepchild. See Robert J. Levy, Rights and Responsibilities for Extended Family Members, 27 Fam. L.Q. 191, 195-198 (1993) (discussion of benefits of general rule requiring standing). The question of standing may arise in a variety of judicial forums for resolving custody disputes between parents and non-parents. Guardianship proceedings, habeas corpus proceedings after a parent has died, and the civil child protection system all establish judicial authority to consider the custody of children. Further, in many states, a third party may seek custody of a child if the child has been in the third party's possession for a specified amount of time preceding the filing. See Uniform Marriage and Divorce Act 401(d)(2), 9A U.L.A. 550 (1987) (person other than parent may commence custody action if child is not in custody of one of his parents; adopted in Arizona, Colorado, Illinois, Kentucky, Minnesota, Missouri, Montana, and Washington); see also Uniform Child Custody Jurisdiction Act 10, 9 U.L.A. 269 (1988) (if the court learns that a person not a party to the custody proceeding has physical custody of the child or claims to have custody or visitation rights with respect to the child, that person shall be joined as a party).

Unfortunately, the most convenient forum, the divorce proceeding, is often denied to stepparents because courts refuse to assume jurisdiction for custody over stepchildren. Courts have generally taken the position that divorce statutes, granting the court the jurisdiction to decide matters concerning "the children of the parties" or "the children of the marriage" simply do not confer jurisdiction on the court to hear a custody dispute between a stepparent and a natural parent. It has been the exception, not the rule, for a court to determine that it has the jurisdiction to hear a custody dispute between a stepparent and a natural parent in a divorce proceeding. The courts have, however, been somewhat more willing to hear a claim for visitation by a stepparent under the more liberal visitation statutes. The Table found at the end of this article summarizes each state's rule on the standing of a stepparent to assert the right of visitation or custody.

The "Proposed Model Act Establishing Rights and Duties of Stepparents," 1991 ABA Family Law Compendium 2-5, provides that a court may grant reasonable visitation rights to the stepparent if the stepparent has standing. The factors to determine standing are: the degree of significant participation in the life of the child, including length of time stepparent may have stood in as the de facto parent; the existence of an emotional relationship between the stepparent and stepchild; the degree of financial assistance provided by the stepparent; detriment to the child if visitation is denied.

III. THE STANDARD FOR GRANTING VISITATION TO STEPPARENT OR FORMER COHABITANT: THE BEST INTERESTS OF THE CHILDAs explained at length in a previous article, see Laura W. Morgan, Grandparent Visitation Rights: Challenges and Solutions, 4 Divorce Litigation 248 (Dec. 1992), at the common law, a relative of a child other than a mother or father lacked any legal right to visit or communicate with a child when a parent forbade such contact. This common-law rule was grounded in the recognition that parents have a constitutionally protected right to determine their child's companionship, care, custody, and management. This constitutional right is derived from the fifth and fourteenth amendments of the United States Constitution, which proscribe governmental inference with individual "liberty." Santosky v. Kramer, 455 U.S. 745 (1982); Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981); Wisconsin v. Yoder, 406 U.S. 205 (1972); Prince v. State of Massachusetts, 321 U.S. 158 (1944); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. Nebraska, 262 U.S. 390 (1923); see also Griswold v. Connecticut, 381 U.S. 479, 486 (1965) ("liberty" protects those personal rights that are fundamental are is not confined to the specific terms of the Bill of Rights).

In recent years, there have been increased calls for legislatures and courts to preserve established adult-child relationships that may be ripped apart when a natural parent dies or when natural parents divorce. These calls have given rise to the enactment of grandparent visitation statutes in every state. These calls also gave rise to increased legal protection for the stepparent-stepchild relationship.

As noted in the Table at the end of this article, twenty-three states have statutes which authorize stepparent visitation. In ten states (California, Delaware, Kansas, Louisiana, New Hampshire, Ohio, Oregon, Tennessee, Virginia, and Wisconsin), stepparents are explicitly denoted as having the right to request visitation. In thirteen other states (Alaska, Connecticut, Georgia, Hawaii, Illinois, Maine, Michigan, Minnesota, Nebraska, New York, Texas, Washington, and West Virginia), "interested third parties" are granted the right to request visitation, and stepparents come within the definition of interested third parties. As further

noted in the Table, in the absence of a statute, some courts have held that stepparents may petition for visitation (Arizona, Idaho, Indiana, Kentucky, Maryland, and Utah), while others have held that stepparents may not petition for visitation (Alabama, Florida, Iowa, and South Dakota).

Assuming that a stepparent may, in fact, request visitation, the standard the court used in determining whether to grant visitation is "the best interests of the child" standard. See generally Note, Marcy Goldstein, The Rights and Obligations of Stepparents Desiring Visitation with Stepchildren: A Proposal for Change, 12 Probate L.J. 145, 165 (1995) (advocating best interests of the child standard for all stepparent visitation cases, eschewing notions of standing); Susan Silverman, Stepparent Visitation Rights: Toward the Best Interests of the Child, 30 J. Fam. L. 943 (1991).

The reason courts have chosen to adopt the "best interests of the child" standard in visitation cases, as opposed to custody cases, was stated well in Commonwealth ex rel. Williams v. Miller, 254 Pa. Super. 227, 385 A.2d 992, 994 (1978):

When seeking visitation, a third party must show reasons to overcome the parent's prima facie right to uninterrupted custody. However, the reasons need not be so convincing as in a custody case. In a custody case, the third party must convince the court that it is in the child's best interest to take custody from a parent and award it to a third party. In a visitation case, the third party need only convince the court that it is in the child's best interest to give some time to the third party. As the amount of time requested moves the visit further from a visit and closer to custody, the reasons offered in support of the request must become correspondingly more convincing.(Emphasis original.) The courts thus view "visitation" with a third party as not inconsistent with parental rights; the third party thus need only establish that visitation is in the best interests of the child. Thus, in the following cases, the appellate court remanded the case back to the trial court to determine whether visitation would be in the child's best interests. See also Carter v. Broderick, 644 P.2d 850 (Alaska 1982); Simpson v. Simpson, 586 S.W.2d 33 (Ky. 1979); In re Sorensen, 138 Or. App. 20, 906 P.2d 838 (1995); In re Shofner, 137 Or. App. 543, 905 P.2d 268 (1995); Gribble v. Gribble, 583 P.2d 64 (Utah 1978) (all cases remanding case back to the trial court for determination of whether visitation would be in the best interests of the child). When determining whether stepparent visitation will be in the best interests of the child, the courts focus on whether the continuity of the stepparent-stepchild relationship will enhance the child's future welfare. For example, in Looper v. McManus, 581 P.2d 487, 488 (Okla. Ct. App. 1978), the court stated:

Visitation [with a stepparent] is aimed at fulfilling what many conceive to be a vital, or at least a wholesome, contribution to the child's emotional well-being by permitting partial continuation of an earlier established close relationship. Usually, such an affiliation is with a natural parent. But it need not be. Thus, even if the continued stepparent-stepchild relationship poses a burden on the autonomy of the custodial parent, this burden is secondary to the primary goal of stabilizing the child's meaningful relationship with a parent figure. The same point was made in In re Marriage of Dureno, 854 P.2d 1352 (Colo. Ct. App. 1992). In that case, the court held that a trial court may grant the stepparent visitation rights where the stepparent has acted in a custodial and parental capacity, and visitation would be in the best interests of the child. In determining the best interests of the child, the court should

consider the wishes of the child's natural parent, the child's age, the nature and length of the relationship between the child and the stepparent, and the extent to which the child's well-being will be served by stepparent visitation. Accord Bryan v. Bryan, 132 Ariz. 353, 645 P.2d 1267 (Ct. App. 1982) (man who stood in loco parentis to child during marriage to child's mother granted visitation rights, where testimony showed he had developed close and loving relationship with child); Wills v. Wills, 399 So. 3d 1130 (Fla. DCA 1981) (welfare of child promoted by visitation with wife of adoptive father); Evans v. Evans, 302 Md. 304, 488 A.2d 157 (1985) (stepmother given visitation as in best interests of child); Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991) (stepfather given visitation, after eight year marriage to mother, and stepfather and child had developed close, loving relationship); Hutton v. Hutton, 21 Ohio App. 3d 26, 486 N.E.2d 129 (1984) (visitation given to stepfather); Seger v. Seger, 377 Pa. Super. 391, 547 A.2d 424 (1988) (it was not in child's best interests that relationship with stepfather be "abruptly terminated").

Courts have been particularly willing to grant stepparent visitation where the stepparent and natural parent were guardians of the child, the natural parent died, the other natural parent assumed custody, and the stepparent desired to continue the relationship with the child. In this instance, the continued relationship with the stepparent serves as a stabilizing force in the transition from the custody of one natural parent to the other natural parent. In re Banning, 541 N.E.2d 283 (Ind. Ct. App. 1989) (stepmother granted visitation after death of father, where stepmother and child had close, loving relationship, and stepmother acted as "symbol" of deceased father); Collins v. Gilbreath, 403 N.E.2d 921 (Ind. Ct. App. 1980) (after suicide of mother, stepfather granted visitation rights when custody reverted to natural father; such visitation was necessary "transition" for child); Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989) (visitation given to stepfather, as means of "transition" after death of mother and custody given to natural father).

The existence of a high degree of animosity between the natural parent and the stepparent may result in a finding that stepparent visitation is not in the best interests of the child. For example, in Rhinehart v. Nowlin, 111 N.M. 319, 805 P.2d 88 (Ct. App. 1990), the court stated that if the parties "had been capable of controllling their animosity and hostility" toward one another, it might have been inclined to allow stepparent visitaiton. The record, however, was full of evidence of loud and angry confrontations concerning visitation. Further, a psychologist testified that that exposure to such intense conflict was placing the children under intolerable stress. Under those circumstances, the court denied stepparent visitation as not in the best interests of the children. Accord Shoemaker v. Shoemaker, 563 So. 2d 1032 (Ala. Civ. App. 1990) to force stepparent visitation on a natural parent and child over the natural parent's objection is detrimental to the well-being of the child).

Other courts have found stepparent visitation not to be in the best interests of the child where the child is so young that it would not know the difference, Halpern v. Halpern, 133 Cal. App. 3d 297, 184 Cal. Rptr. 740 (1982); where a new stepparent has established an in loco parentis realtionship with the child, Temple v. Meyer, 208 Conn. 404, 544 A.2d 629 (1988); and where the child of sufficient years and maturity has expressed the desire to terminate the relationship with the stepparent. In re Raymond H., 120 A.D.2d 528, 501 N.Y.S.2d 726 (1986).

As to true "stepparents," that is, a person of the opposite sex married to the custodial parent, the primary obstacle to visitation rights have been jurisdictional. Once the stepparent is allowed in the court house doors, visitation may be established on a simple "best interests of

the child" analysis. Former cohabitant visitaiton has not been as simple. See Kristine L. Burks, Redefining Parenthood: Child Custody and Visitation When Nontraditional Families Dissolve, 24 Golden Gate U.L. Rev. 223 (1994); Elizabeth A. Delaney, Statutory Protection of the Other Mother: Legally Recognizing the Relationship Between the Nonbiological Lesbian Parent and Her Child, 43 Hastings L.J. 177 (1991); Nancy D. Polikoff, This Child Does Have Two Mothers: Redefining Parenthood to Meet the Needs of Children in Lesbian-Mother and other Nontraditional Families, 78 Geo. L.J. 459, 461 (1990).

The courts have almost uniformly held that a former cohabitant, heterosexual or homosexual, cannot assert the right to visitation with the former cohabitant's child because a cohabitant cannot, as a matter of law, establish an in loco parentis relationship with a child that should later be protected. In re Marriage of Gayden, 229 Cal. App. 3d 1510, 280 Cal. Rptr. 862 (1991) (court rejected request for visitation by woman who had lived with custodial father, where both father and mother objected to such visitation); Nancy S. v. Michele G., 228 Cal. App. 3d 831, 279 Cal. Rptr. 212 (1991) (natural mother's former lesbian cohabitant did not have right to assert visitation with child over mother's objection); Taylor v. Kennedy, 649 So. 2d 270 (Fla. DCA 1995) ("psychological father" who had lived with natural mother for much of last six years could not assert right to visitation with child); Music v. Rachford, 654 So. 2d 1234 (Fla. DCA 1995) (lesbian cohabitant cannot pursue custody of child); In re Paternity of E.M., 654 N.E.2d 890 (Ind. Ct. App. 1994) (man who lived with woman for six years could not intervene in paternity action for purpose of establishing visitatin, where it was uncontested he was neither natural father nor stepfather to child); In re Marriage of Freel, 448 N.W.2d 26 (Iowa 1989) (woman lived with father for five years but hadn't married him had no standing to assert visitation with child); McGuffin v. Overton, 214 Mich. App. 94, 542 N.W.2d 288 (1995) (lesbian partner of deceased mother who was named guardian of children by mother's will could not assert custody or visitation with children over objections of natural father), appeal dismissed, ___ Mich. ___, 546 N.W.2d 256 91996); Alison D. v. Virginia M., 77 N.Y.2d 651, 569 N.Y.S.2d 586 (1991) (lesbian partner cannot assert visitation); Roland F. v. Brezenoff, 108 Misc. 2d 133, 436 N.Y.S.2d 934 (Fam. Ct. 1981) (former boyfriend of mother was not entitled to assert visitation rights); Cooper v. Merkel, 470 N.W.2d 253 (S.D. 1991) (man who lived with woman and her son for seven years did not state cause of action for visitation in absence of allegation mother was unfit); In re Interest of Z.J.H., 157 Wis. 2d 431, 459 N.W.2d 602 (Ct. App. 1990) (no right of cohabitant to seek visitation; note that this case was subsequently overruled by In re Custody of H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995), discussed below).

Other courts have no been so harsh. Rather, some courts have held that where a former cohabitant can establish an in loco parentis relationship to the child prior to the break up of the relationship with the natural parent-cohabitant, then the former cohabitant may seek visitation rights as being in the best interests of the child. This was demonstrated in the case of In re Custody of H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995). In that case, Sandra Holtzman was the lesbian partner of Elsbeth Knott. Knott was the biological mother of H.S. After the relationship between the two women was over, Holtzman petitioned for custody or visitaiton with H.S. The appellate court held that Holtzman could assert a right of visitation with the child on the basis of the best interests of the child where the petitioner has demonstrated a parent-like realtionship with the child. Accord In re Hirenia C., 18 Cal. App. 4th 504, 22 Cal. Rptr. 2d 443 (1993) (former female cohabitant of pre-adoptive mother had standing to request visitation where child had been placed with both women as foster parents prior to adoption); In re Robin N., 7 Cal. App. 4th 1140, 9 Cal. Rptr. 2d 512 (1992) (man who was de facto father of child born to woman with whom he was living was granted visitation

rights); Guardianship of Martha M., 204 Cal. App. 3d 909, 251 Cal. Rptr. 567 (1988) (man who had been "close friend" of mother and had contributed to support of child could seek visitation rights after child's mother committed suicide); A.C. v. C.B., 113 N.M. 581, 829 P.2d 660 (Ct. App. 1992) (woman who agreed with child's biological mother to raise child brought action on settlement agreement giving her visitation rights with child; court held that woman stated colorable claim for visitation); In re Ronald F.F., 117 A.D.2d 332, 502 N.Y.S.2d 823 (1986) (man who lived with child's mother, though not married to her, entitled to visitation under "extraordinary circumstances"); J.A.L. v. E.P.H., 22 Fam. L. Rep. (BNA) 1543 (Pa. Super. Ct., Sept. 19, 1996) (former lesbian partner of woman who conceived and gave birth to child during long-term relationship had standing to seek "partial custody" of child since she stood in loco parentis to child).

If the courts are willing to protect the relationship between a stepparent and a stepchild because of the bonds of love and affection that have grown between them, then it is simply inconsistent for a court to rule that the same bonds between a former cohabitant and a child are not worthy of protection because of the absence of a marriage license between the cohabitants. It is the adult-child relationship that should be protected, regardless of the legal status of the relationship between the adults.

IV. THE STANDARD FOR GRANTING CUSTODY TO STEPPARENT OR FORMER COHABITANTOnce the initial standing hurdle is passed, thereby allowing the stepparent or former cohabitant to press a claim for custody, the next question facing the stepparent is under what standard must the court decide custody: under the "best interests of the child" standard, under a "parental unfitness" standard, or under some other standard?

Most legislatures and courts have held that there is a strong presumption in favor of the natural parent in any custody contest with a nonparent, and this presumption may be overcome only on proof that the parent is "unfit" to care for the child. This is the traditional standard employed for resolving disputes between parents and nonparents, including stepparents and former cohabitants. Kan. Stat. Ann. 60-1610(a)(4)(D) (Supp. 1995); Maine Rev. Stat. Ann. tit. 19, 752 (Supp. 1995); Miss. Code Ann. 93-5-24(1)(e) (1994); Mo. Ann. Stat. 452.375(4)(a) (Vernon Supp. 1996); Wis. Stat. Ann. 767.24(3) (Supp. 1995); see, e.g., Berryhill v. Berryhill, 410 So. 2d 416 (Ala. 1982) (evidence must show that natural father is either unfit or unsuited for role of father); Stamps v. Rawlins, 297 Ark. 220, 761 S.W.2d 933 (1988) (preference for natural parent must prevail unless it is established that natural parent is unfit); Pape v. Pape, 444 So. 2d 1058 (Fla. DCA 1984) (in contest between natural father and step-father after death of mother, natural father was entitled to custody in absence of finding that he was unfit); Webb v. Webb, 546 So. 2d 1062 (Fla. DCA 1989) (it was error to award custody to stepmother after death of custodial father in absence of clear and convincing evidence that mother was unfit or had abandoned child); Howell v. Gossett, 234 Ga. 145, 214 S.E.2d 882 (1975) (in constest between father and stepfather after death of mother, stepfather must show that father is not a fit and proper person to have custody); Selanders v. Anderson, 178 Kan. 664, 291 P.2d 425 (1955) (after death of father, custody belongs to mother unless stepmother can show mother is unfit and improper person to have custody); In re Hohmann's Petition, 95 N.W.2d 643 (Minn. 1959) (on death of mother, custody belongs to father unless he is unfit); Milam v. Milam, 376 So. 2d 1336 (Miss. 1979) (after death of mother, in contest between father and stepfather, the burden is on the stepfather to prove that the father was mentally, morally, or otherwise unfit); In re Interest of G.A.W., 867 S.W.2d 704 (Mo. Ct. App. 1993) (in contest between stepfather and father after death of mother, trial court erred in

granting custody to stepfather in absence of finding that child's welfare would be manifestly jeopardized by father's unfitness); Stuhr v. Stuhr, 240 Neb. 239, 481 N.W.2d 212 (1992) (on petition for modification of divorce decree which incorporated agreement of parties granting custody to stepfather, mother was entitled to parental preference and could not be denied custody unless it was shown she was unfit).

The Montana court recently explained why it believed the unfitness standard was mandatory and the "best interests of the child" standard was unconstitutional in custody contests between stepparents and natural parents. In re A.R.A., ___ Mont. ___, 919 P.2d 388 (1996). In that case, after the death of the child's mother, the natural father petitioned for custody of his child, over the objection of the mother's new husband, the child's step-father, who had been named guardian of the child in the mother's will. The trial court ordered that custody remain with the stepfather under the best interests of the child test found in Mont. Code Ann. 40-4-221. The Montana Supreme Court reversed, holding that Montana had long recognized the constitutional right of a natural parent to the custody of his or her child, citing Stanley v. Illinois, 405 U.S. 645 (1972), and Meyer v. Nebraska, 262 U.S. 390 (1923). Consequently, the use of the best interests of the child test is improper in a contest between a parent and a stepparent:

While we recognize that 40-4-221, MCA, gives a nonparent standing to request a custody hearing, that section does not give the district court the authority to deprive a natural parent of his or her constitutionally protected rights absent a finding of abuse and neglect or dependency. 919 P.2d at 392. Accord Engel v. Kenner, 22 Fam. L. Rep. (BNA) 1398 (Mo. Ct. App., June 18, 1996) (court cannot declare unwed mother's former cohabitant to be equitable parent of child, and then award him custody based on child's bets interests); Price v. Howard, ___ N.C. App. ___, 471 S.E.2d 673 (1996) (best interests of child standard cannot govern dispute between unwed mother and cohabitant who had held out child as his own); cf. In re Guardianship of Knell, 537 N.W.2d 778 (Iowa 1995) (after mother's death, stepfather had standing to seek guardianship of stepdaughter; child's best interests will determine guardianship); In re Astonn H., ___ A.D.2d ___, 635 N.Y.S.2d 418 (1996) (after mother's death, mother's former lesbian partner had standing to seek letters of guardianship); Matter of Guardianship of Nelson, 519 N.W.2d 15 (N.D. 1994) (after father's death, father's girlfried was appointed children's custodial guardian, where she had acted a children's principal caretaker for years and mother had abandoned children). Another court has specifically held that "best interests of the child" test in a custody contest between a parent and a stepparent to be unconstitutional. In McQuade v. McQuade, 124 Or. App. 243, 862 P.2d 545 (1993), upon the divorce of the mother and the stepfather, the trial court awarded custody of the mother's child by a previous marriage and the parties' own child to the stepfather. The mother appealed, and the appellate court reversed, holding that the "best interests of the child" standard is not applicable in custody disputes between a natural parent and a person unrelated to the child. Rather, the court must give custody of children to their natural parents unless there are compelling reasons for giving custody to another party. Because the "unfitness" standard is so difficult to prove, some courts have broadened the definition of "unfitness" in stepparent custody cases to include "parental indifference," a standard that would most likely not have been upheld in a parental rights termination proceeding. For example, in Patrick v. Byerly, 228 Va. 691, 325 S.E.2d 99 (1985), the natural mother and former stepmother both asserted custody of a ten-year old boy after he was abandoned by his natural father. The appellate court affirmed the custody award to the stepmother, giving weight to the fact that the child wanted to stay with his stepmother, the

stepmother was the only mother had had ever known, and the mother had "abandoned" the child when he was four and one-half months old by leaving the child in the custody of the father. While this "abandonment" would not have been sufficient to terminate her parental rights, it was sufficient to grant custody to the stepmother. See also Clifford v. Woodford, 83 Ariz. 257, 320 P.2d 452 (1957) (after mother's death, father sought custody of children from stepfather; stepfather granted custody, as father had shown "little love or interest in children since the divorce"); Clark v. Jelinek, 414 P.2d 892 (Idaho 1966) (father "abandoned" children after divorce from mother, allowing court to grant custody to stepfather after mother's death, where father paid only $50 support per month instead of court-ordered $90 per month, and father showed no interest in children). The courts have rationalized this expansion of "unfitness" in the custody context by stating that custody is a less dramatic limitation of parental rights than outright permanent termination of parental rights. Thus, the standard for showing "unfitness" may be more relaxed in the custody context. E.g., In re Sumey, 94 Wash. 2d 757, 621 P.2d 108 (1980).

Under a somewhat less exacting standard, some legislatures and courts have held that a nonparent may be granted custody where there is a compelling reason for interfering with the parent- child relationship, such as where the natural parent's environment is "unsuitable," Del. Code Ann. tit. 13, 701(b) (1996), or where custody to the natural parent would be "detrimental" to the child. Cal. Fam. Code 3040 (West 1994); Okla. Stat. Ann. tit. 10, 21.1 (West Supp. 1996).

Under this less exacting standard, a stepparent may be granted custody in the divorce between the stepparent and the custodial parent where the facts show that the child would not benefit from being in the custody of the natural parent. A good example of this standard can be found in In re Marriage of Allen, 28 Wash. App. 637, 626 P.2d 16 (1981). In that case, the father, Joe Allen and Dana Allen were the natural parents of a child, Joshua, who was born profoundly deaf. Joe and Dana divorced, and custody was eventually placed with Joe. Joe then married Jeannie, and adopted Jeannie's three children. When Joe and Jeannie divorced, Jeannie asserted custody of all children, including Joshua.

The trial court awarded custody of Joshua to Jeannie. Of particular importance to the court was the fact that Jeannie had put forth an extraordinary amount of effort and dedication in helping Joshua learn to speak sign language and in finding special training for Joshua. In fact, Jeannie's efforts attracted state-wide attention of thos interested in programs for deaf children.

The trial court was careful to point out that Joe was not an "unfit parent," but his attitude was signficantly different from Jeannie's. Whereas Joe's attitude toward Joshua was apathetic and fatalistic, Jeannie's attitude bespoke of a dedication not ordinarily found in parents. Thus, the trial court's finding that Joe was "unsuitable" was sustained by the appellate court. See also Worden v. Worden, 434 N.W.2d 341 (N.D. 1989) (court may grant custody to stepparent in presence of "exceptional circumstances"; court, however, declined to find that such exceptional circumstances existed where girl's relationship with stepfather was less than two years in duration); Hruby and Hruby, 304 Or. 500, 748 P.2d 57 (1987) (court must give custody of children to their natural parents unless there are "compelling reasons" for giving custody to another party); Neely v. Neely, 698 S.W.2d 758 (Tex. Ct. App. 1985) (nonparent must adduce evidence affirmatively showing "detrimental effect" upon child if placed with natural parent); Pacquette v. Pacquette, 146 Vt. 83, 499 A.2d 23 (1985) (if shown by clear and convincing evidence that natural parent is unfit or that extraordinary circumstances exist, custody may be awarded to stepparent).

This less exacting standard has also been used in custody contests between a natural parent and a stepparent after the death of the custodial parent. Thus, in Bailes v. Sours, 231 Va. 96, 340 S.E.2d 824 (1986), custody was granted to the child's stepmother following the child's father's death. The factors that the court found significant were that the twelve- year old boy had resided with his stepmother for ten years, the natural mother had maintained very little contact with him, he had been traumatized by the death of his father, he expressed strong opposition to leaving the home he shared with his stepmother and half-brother, and the court found that such a transition would be detrimental to the boy's welfare. Accord Simons v. Gisvold, 519 N.W.2d 585 (N.D. 1994) (after death of father, stepmother asserted custody over natural mother; court held that appropriate standard was whether custody to mother would result in "serious harm or detriment to the welfare of the child); In re Dunn, 79 Ohio App. 3d 268, 607 N.E.2d 81 (1992) (stepmother properly awarded custody of children after custodial father's death, where evidence showed custody to mother would have "devastating and detrimental effect" on emotional stability of children).

It is important to note that even under this less exacting standard, a court will not grant custody to a stepparent after the death of the natural parent merely because the child wishes to remain with the stepparent. This was demonstrated in Tyrrell v. Tyrrell, 67 A.D.2d 247, 415 N.Y.S.2d 723 (1979). In that case, the mother brought a habeus corpus proceeding to regain custody of her child from the child's stepmother after the death of the custodial father. The lower court denied the writ, and the mother appealed. The appellate court held that acquiscence of the mother to placement of her children in the custody of the father, continuation of that custodial arrangement after the father's remarriage, and the children's desire to remain with the stepmother could not amount to "extraordinary circumstances" justifying an award of custody to the children's stepmother. Accord In re Custody of Krause, 111 Ill. App. 3d 604, 444 N.E.2d 644 (1982) (custody of child awarded to natural father after death of mother, over wishes of child and stepfather; such wishes do not neutralize natural parent's superior right to child); In re Pemice, 116 A.D.2d 945, 498 N.Y.S.2d 234 (1986) (natural parent cannot be deprived of custody on death of custodial parent absent "compelling reasons"; court did not find such reasons, although girl wished to remain with stepfather).

Finally, at the opposite extreme, some legislatures and courts have held that the best interests of the child analysis applies in a custody contest between a parent and stepparent. Conn. Gen. Stat. Ann. 46b-57 (West 1995); Haw. Rev. Stat. 571-46(2) (Supp. 1995); N.H. Rev. Stat. Ann. 458:17 (1992 & Supp. 1995). In Stanley D. v. Deborah D., 124 N.H. 138, 467 A.2d 249, 251 (1983), the court explained its rationale for using such a standard:

While recognizing the importance of day-to-day custody in the spectrum of parental rights, we do not find that the denial of an award of physical custody is equivalent to the termination of parental rights, thereby requiring proof of the natural parent's unfitness or other extraordinary circumstances. We hold that, upon a finding that the best interests of the child require that the natural mother be denied physical custody, the court has the power to award physical custody to the stepfather.Accord Root v. Allen, 377 P.2d 117 (Colo. 1962) (awarding custody to stepfather on death of mother based on best interests of child); Stockwell v. Stockwell, 775 P.2d 611 (Idaho 1989); In re J.K.F., 174 Ill. App. 3d 732, 529 N.E.2d 92 (1988) (affirming custody award to stepfather after finding under Juvenile Court Act that custody would serve the best interests of the child, where the mother was unfit and had abused children); Cebrzynski v. Cebrzynski, 63 Ill. App. 3d 66, 379 N.E.2d 713 (1978) (in custody proceeding between mother and

stepmother after death of children's natural father, best interests of children dictated that children remain with stepmother with whom they had lived for three and one-half years); McKinley v. McKinley, 631 So. 2d 45 (La. Ct. App. 1994) (stepfather awarded custody of stepdaughter, on finding that her best interests would be served by not separating her from her half-siblings); Atkinson v. Atkinson, 160 Mich. App. 601, 408 N.W.2d 516 (1987) (adopting equitable parent doctrine, treating stepparent like parent in custody contest); Palermo v. Palermo, 164 N.J. Super. 492, 397 A.2d 349 (App. Div. 1978) (finding that best interests of child would be served by granting custody to stepmother on divorce of father and stepmother); Karner v. McMahon, 433 Pa. Super. 290, 640 A.2d 926 (1994) (natural parent's fitness is but one factor to be considered in custody dispute between parent and stepparent; best interests of child is paramount consideration); Commonwealth ex rel. Husack v. Husack, 273 Pa. Super. 192, 417 A.2d 233 (1979) (best interests of child governed dispute between parent and stepparent). It is somewhat disingenuous for a court to believe that a loss of custody is not as extreme as a termination of parental rights, and therefore the "best interests of the child" standard is not constitutionally inappropriate in a custody dispute between a parent and a stepparent. To the parent who loses custody, and faces the prospect of seeing a loved child on a limited basis, the loss is just as devastating. These courts should reexamine the standard they employ in third party custody cases in light of a parent's constitutional right to the care, custody, and companionship of one's child.

V. CONCLUSIONOne of the greatest distinctions of family law has been its ability to adapt to new situations as the structures of families have changed. Increasing divorce rates gave rise to no-fault divorce and equitable distribution. The increasing mobility of society gave rise to rules on custodial parent relocation. Rigid rules are not well suited to family law.

Perhaps the greatest challenge in the coming years will be the adaptability of family law to the increasing number of nontraditional families. While biological parents have strong, legitimate, and even constitutional rights in raising their children as they see fit, it must be recognized that a child and stepparent, or a child and parent's cohabitant, can form close and loving bonds that should not so easily be ripped assunder. The greatest challenge for family law will thus be to balance the paramount rights of parents with the not easily overlooked rights of stepparents, cohabitants, and children.

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STEPPARENT'S RIGHT TO REQUESTCUSTODY OR VISITATION: STANDING(1) Alabama: No statute. Shoemaker v. Shoemaker, 563 So. 2d 1032 (Ala. Civ. App. 1990) (there is no right, by statute or common law, for visitation with stepchild).

(2) Alaska: Alaska Stat. 25.24.150(a) (1995) (provides standing for custody rights to third parties on divorce, separation, or death of parent). Carter v. Broderick, 644 P.2d 850 (Alaska 1982) (court may grant visitation to stepparent who stands in loco parentis to child).

(3) Arizona: No statute. Olvera v. Superior Court, 168 Ariz. 556, 815 P.2d 925 (Ct. App. 1991) (trial court lacks jurisdiction to grant custody to stepparent); Bryan v. Bryan, 132 Ariz.

353, 645 P.2d 1267 (Ct. App. 1982) (stepparent who stands in loco parentis may be awarded visitation rights; note, however, that in Finck v. O'Toole, 179 Ariz. 404, 880 P.2d 624 (1994), the Supreme Court of Arizona impliedly disapproved of Bryan's holding that the Superior Court has authority to award visitation to a stepparent).

(4) Arkansas: No statute. Stair v. Phillips, 315 Ark. 429, 867 S.W.2d 453 (1993) (stepparent has no right to custody of stepchild after divorce); Stamps v. Rawlins, 297 Ark. 220, 761 S.W.2d 933 (1988) (interpreting Ark. Stat. Ann. 9-13-101, which provides that court can award custody of "child of marriage," court held that it could award custody of stepchild to stepparent, but that there was a natural parental preference in such a custody dispute).

(5) California: Cal. Fam. Code 3040(3), 3041 (West 1994) (authorizing nonparent custody based on finding than an award of custody to parent would be detrimental to child and award to nonparent would serve best interests of child); Cal. Fam. Code 3101 (West 1994) (specifically recognizing stepparent visitation on divorce or death of parent). In re Marriage of Hinman, 6 Cal. App. 4th 711, 8 Cal. Rptr. 245 (1992) (court had authority to award custody to stepparent, estopping natural from denying that children were "of the marriage" where she so claimed in pleadings); Goetz v. Lewis, 203 Cal. App. 3d 514, 250 Cal. Rptr. 30 (1988) (court does not have jurisdiction in divorce proceeding to determine custody of child not of the parties, but may, by statute, grant visitation rights); In re Hirenia C., 18 Cal. App. 4th 504, 22 Cal. Rptr. 2d 443 (1993) (former female cohabitant of pre-adoptive mother had standing to request visitation where child had been placed with both women as foster parents prior to adoption).

(6) Colorado: Colo. Rev. Stat. 14-10-123 (1987) (nonparent has standing, under state provision of Uniform Marriage and Divorce Act, to assert custody of child where he or she has had custody of the child for six months). In re Custody of C.C.R.G., 872 P.2d 1337 (Colo. Ct. App. 1993) (court could consider stepparent's claim to custody under provisions of Uniform Marriage and Divorce Act); In re Marriage of Dureno, 854 P.2d 1352 (Colo. Ct. App. 1992) (trial court may grant visitation privileges to stepparent where stepparent has acted in loco parentis).

(7) Connecticut: Conn. Gen. Stat. Ann. 46b-57 (West 1995) (provides standing to any interested third party to intervene in custody dispute, establishing jurisdiction in the superior court over any minor child of either or both parties); Conn. Gen. Stat. Ann. 46b-59 (West 1995) (provides jurisdiction to grant visitation rights to any person on divorce). Patrell v. Ayers, 5 Conn. L. Rptr. No. 10,249 (1991) (person who is not biological, adoptive, or foster parent does not have standing to seek custody; statute applies only in dissolution, annulment or separation); Temple v. Meyer, 208 Conn. 404, 544 A.2d 629 (1988) (denying visitation rights to stepfather, but holding that only relevant criterion was best interests of child).

(8) Delaware: Del. Code Ann. tit. 13, 733 (1996) (authorizes court to award custody to stepparent based on child's best interests).

(9) District of Columbia: No statute.

(10) Florida: No statute. O'Dell v. O'Dell, 629 So. 2d 891 (Fla. DCA 1993) (court had no jurisdiction to grant stepfather visitation rights); Meeks v. Garner, 598 So. 2d 261 (Fla. DCA 1992) (stepfather had no right to claim visitation or custody of stepchild after custodial mother died); Music v. Rachford, 654 So. 2d 1234 (Fla. DCA 1995) (lesbian cohabitant

cannot pursue custody of child); Taylor v. Kennedy, 649 So. 2d 270 (Fla. DCA 1995) ("psychological father" who had lived with natural mother for much of last six years could not assert right to visitation with child).

(11) Georgia: Ga. Code Ann. 19-9-1, -2 (Supp. 1996) (court may place custody with a third party on divorce or death of parent). Howell v. Gossett, 234 Ga. 145, 214 S.E.2d 882 (1975) (in constest between father and stepfather after death of mother, stepfather must show that father is not a fit and proper person to have custody).

(12) Hawaii: Haw. Rev. Stat. 571-46(2) (Supp. 1995) (custody may be awarded to persons other than the mother or mother, where such award serves the best interests of the child; person with de facto custody in a stable and wholesome environment is entitled prima facie to award of custody); Haw. Rev. Stat. 571-46(7) (Supp. 1995) (allowing court to grant visitation rights to any person on divorce on showing of best interests of the child).

(13) Idaho: No statute. Stockwell v. Stockwell, 775 P.2d 611 (Idaho 1989) (visitation granted to stepparent under theory of in loco parentis).

(14) Illinois: 750 I.L.C.S. 5/601(b)(2) (Supp. 1996) (state provision of Uniform Marriage and Divorce Act, permitting person other than parent to petition for custody or visitation if the child is not in the physical custody of one of his parents). In re Marriage of Carey, 188 Ill. App. 3d 1040, 544 N.E.2d 1293 (1989) (under Uniform Marriage and Divorce Act, a nonparent, without showing that the natural parent is unfit, may obtain custody of the child if the best interests of the child so dictate).

(15) Indiana: No statute. Caban v. Healey, 634 N.E.2d 540 (Ind. Ct. App. 1994) (affirming visitation to stepmother who had acted as child's parent for most of child's life); Collins v. Gilbreath, 403 N.E.2d 921 (Ind. Ct. App. 1980) (court may grant visitation to stepparent on showing of best interests of child over objection of natural parent).

(16) Iowa: No statute. In re Marriage of Halvorsen, 521 N.W.2d 725 (Iowa 1994) (courts do not have authority to grant visitation to stepparent); In re Petition of Ash, 507 N.W.2d 400 (Iowa 1993) (stepparent not entitled to visitation).

(17) Kansas: Kan. Stat. Ann. 60-1610(a)(4)(D) (Supp. 1995) (in dissolution proceedings court may award custody to stepparent if child is in need of care as defined by child protection laws or neither parent is fit to have custody); Kan. Stat. Ann. 60- 1616(b) (1994) (specifically recognizing stepparent visitation on divorce). In re Osborne, 21 Kan. App. 2d 374, 901 P.2d 12 (1995) (under UCCJA stepmother had standing to intervene in ex- husband's custody action with his ex-wife after ex-husband's death); State v. Taylor, 125 Kan. 594, 264 P. 1069 (1928) (stepchild is child of marriage where stepparent stands in loco parentis, thereby giving court jurisdiction to decide custody of child).

(18) Kentucky: No statute. Simpson v. Simpson, 586 S.W.2d 33 (Ky. 1979) (court may grant visitation to stepparent who stands in loco parentis to child).

(19) Louisiana: La. Civ. Code Ann. arts. 131, 133 (West Supp. 1996) (custody may be awarded to person in whose home child has been living in a wholesome and stable environment); La. Civ. Code Ann. art. 136 (West Supp. 1996) (specifically recognizing stepparent visitation on divorce). McKinley v. McKinley, 631 So. 2d 45 (La. Ct. App. 1994)

(stepfather awarded custody of stepdaughter, on finding that her best interests would be served by not separating her from her half-siblings).

(20) Maine: Me. Rev. Stat. Ann. tit. 19, 752(6) (Supp. 1995) (court may award custody to third party where parent unfit); Me. Rev. Stat. Ann. tit. 19, 214(a), 752(6) (Supp. 1995) (allowing court to grant visitation rights to any person on separation or divorce on best interests of child).

(21) Maryland: No statute. Evans v. Evans, 302 Md. 334, 488 A.2d 157 (1985) (court may grant visitation to stepparent on showing of best interests of child).

(22) Massachusetts: Mass. Gen. Laws Ann. ch. 208, 28 (Supp. 1996) (on judgment of divorce, court may award custody to third person if is in the best interests of the children).

(23) Michigan: Mich. Comp. Laws 722.27(1)(a) (1993) (court may award custody of child to one or more of the parties involved or to others); Mich. Comp. Laws 772.27(1)(b) (1993) (allowing court to grant visitation to any interested person if reasonable).

(24) Minnesota: Minn. Stat. Ann. 257.022(2b) (West 1992 & Supp. 1996) (person having de facto custody of child for two years may petition for visitation). Simmons v. Simmons, 486 N.W.2d 788 (Minn. Ct. App. 1992) (court may enforce visitation rights of stepparent under stipulation in dissolution action).

(25) Mississippi: Miss. Code Ann. 93-5-24(1)(e) (1994) (court may grant custody to nonparent if parent is unfit). Milam v. Milam, 376 So. 2d 1336 (Miss. 1979) (after death of mother, in contest between father and stepfather, the burden is on the stepfather to prove that the father was mentally, morally, or otherwise unfit).

(26) Missouri: Mo. Ann. Stat. 452.375(5)(3) (Vernon Supp. 1996) (when court finds than each parent is unfit, unsuitable, or unable to meet the demands of custodial, custody may be awarded to a third party; under these provisions, any person may petition the court as an interested party). In re Interest of G.A.W., 867 S.W.2d 704 (Mo. Ct. App. 1993) (in contest between stepfather and father after death of mother, trial court erred in granting custody to stepfather in absence of finding that child's welfare would be manifestly jeopardized by father's unfitness).

(27) Montana: Mont. Code Ann. 40-4-211(4)(b) (1995) (state provisions of Uniform Marriage and Divorce Act, giving standing to person other than parent to petition for custody if child is not in physical custody of one of parents). In re A.R.A., ___ Mont. ___, 919 P.2d 388 (1996) (amendment to Montana's Uniform Marriage and Divorce Act, under which remarried custodial parent's spouse may be awarded custody of parent's child on parent's death, without termination of the noncustodial parent's rights, is unconstitutional); In re Marriage of Miller, 251 Mont. 300, 825 P.2d 189 (1992) (stepparent's only venue for custody of stepchild was child abuse, neglect, and dependency proceedings); Pierce v. Pierce, 198 Mont. 255, 645 P.2d 1353 (1982) (stepfather had no standing in divorce action to request custody of stepchild, and doctrine of equitable estoppel was inapplicable).

(28) Nebraska: Neb. Rev. Stat. 42-364(10) (1995) (in dissolution of marriage, court may include orders relating to children, including placing children with third parties); Neb. Rev. Stat. 42-364(10) (1995) (visitation shall be determined according to the best interests of the

child). Cavanaugh v. deBaudiniere, 1 Neb. App. 713, 493 N.W.2d 197 (1992) (court may grant visitation to stepparent, and will enforce contract between parties concerning support of stepchild); Hickenbottom v. Hickenbottom, 239 Neb. 579, 477 N.W.2d 8 (1991) (court has authority to grant visitation to stepparent who stands in loco parentis).

(29) Nevada: Nev. Rev. Stat. 125.480(3) (Supp. 1995) (court may award custody to third parties). Fisher v. Fisher, 99 Nev. 762, 670 P.2d 572 (1983) (stepparent is "concerned person" under Nev. Rev. Stat. 159.044(1) (1996) governing guardianship proceedings, and thus stepparent had standing to assert a claim for guardianship of a child in a divorce proceeding).

(30) New Hampshire: N.H. Rev. Stat. Ann. 458:17(VI) (1992 & Supp. 1995) (establishing best interests of child standard for custody cases and allowing custody to stepparent); N.H. Rev. Stat. Ann. 458.17(VI) (1992 & Supp. 1995) (specifically recognizing stepparent visitation on divorce). Stanley D. v. Deborah D., 124 N.H. 138, 467 A.2d 249, 251 (1983) (stepparent may be given custody on showing it is in best interests of child).

(31) New Jersey: No statute. Klipstein v. Zalewski, 230 N.J. Super. 567, 553 A.2d 1384 (Ch. Div. 1988) (visitation to stepparent granted under theory of in loco parentis).

(32) New Mexico: N.M. Stat. Ann. 40-4-9.1(K) (1994) (where any person other than parent seeks custody of child, no such person shall be awarded custody absent showing of unfitness of parent). Rhinehart v. Nowlin, 111 N.M. 319, 805 P.2d 88 (Ct. App. 1990) (trial court has authority to grant stepparent visitation with spouse's children if important to child's welfare).

(33) New York: N.Y. Dom. Rel. Law 240 (Supp. 1996) (in action for divorce, court may grant custody to third party, and third party has standing to intervene); N.Y. Dom. Rel. Law 72 (Supp. 1996) (granting visitation rights to third parties under extraordinary circumstances). In re Carl S., ___ Misc. 2d ___, 637 N.Y.S.2d 607 (Fam. Ct. 1995) (stepfather of children placed in foster care is entitled to seek visitation); Boland v. Boland, 186 A.D.2d 1065, 588 N.Y.S.2d 485 (1992) (stepmother lacked standing to seek visitation with former stepdaughter).

(34) North Carolina: N.C. Gen. Stat. 50-13.1 (1995) (allows any person to file action seeking custody of child). Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994) (visitation statute was not intended to confer upon strangers the right to bring custody or visitation action against parents of children unrelated to those strangers).

(35) North Dakota: N.D. Cent. Code 14-09-06.1 (1991) (authorizes an order for custody to a third party). Seigneur v. Olson, 519 N.W.2d 15 (N.D. 1994) (after death of custodial father, custody awarded to stepmother on showing of "exceptional circumstances" including abandonment by mother).

(36) Ohio: Ohio Rev. Code Ann. 3109.04(D)(2) (Anderson 1996) (custody may be granted to third party on divorce); Ohio Rev. Code Ann. 3109.05.1(B)(1) (Anderson 1996) (specifically recognizing stepparent visitation on divorce on best interests of child); Ohio Rev. Code Ann. 3109.11 (Anderson Supp. 1994) (custody may be awarded to stepparent on death of custodial parent). In re Dunn, 79 Ohio App. 3d 268, 607 N.E.2d 81 (1992) (stepmother properly awarded custody of children after custodial father's death, where evidence showed custody to mother would have "devastating and detrimental effect" on emotional stability of children).

(37) Oklahoma: Okla. Stat. Ann. tit. 10, 21.1 (West Supp. 1996) (authorizing appointment of nonparent guardian following death of custodial parent if it would be detrimental to child for noncustodial parent to have custody). Looper v. McManus, 581 P.2d 487 (Okla. 1978) (court may grant visitation to stepparent on best interests of child).

(38) Oregon: Or. Rev. Stat. 109.119(2) (Supp. 1994) (stepparent in dissolution action may petition for custody or visitation); Or. Rev. Stat. 109.119(2) (Supp. 1994) (specifically recognizing stepparent visitation on divorce). In re Sorensen, 138 Or. App. 80, 906 P.2d 838 (1995) (child's stepmother could intervene in custody proceeding between child's parents); In re Shofner, 137 Or. App. 54, 905 P.2d 268 (court had authority to award stepfather visitation with wife's child).

(39) Pennsylvania: Rule 1915.6, 42 Pa. Con. Stat. Ann. (Purdon Supp. 1995) (one who has physical custody of child may intervene in custody proceeding). J.A.L. v. E.P.H., 22 Fam. L. Rep. (BNA) 1543 (Pa. Super. Ct., Sept. 19, 1996) (former lesbian partner of woman who conceived and gave birth to child during long-term relationship had standing to pursue "partial custody" of child, where partner stood in loco parentis to child); Walkenstein v. Walkenstein, 443 Pa. Super. 683, 663 A.2d 178 (1995) (stepparent has standing to pursue custody if he or she stands in loco parentis to child); Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 897 (1977) (court may grant visitation to stepparent who stands in loco parentis).

(40) Rhode Island: No statute.

(41) South Carolina: S.C. Code Ann. 20-7-420(20) (Supp. 1994) (provides for an award of custody to either spouse or any other proper person).

(42) South Dakota: No statute. Quinn v. Mouw-Quinn, 22 Fam. L. Rep. (BNA) 1492 (S.D. Sup. Ct., August 14, 1996) (court may grant stepparent visitation rights where "extraordinary circumstances" exist).

(43) Tennessee: Tenn. Code Ann. 36-6-101(a) (Supp. 1995) (allows for an award of custody to parent or some suitable person); Tenn. Code Ann. 36-6-303 (Supp. 1995) (specifically recognizing stepparent visitation on divorce). Henderson v. Mabry, 838 S.W.2d 537 (Tenn. Ct. App. 1992) (stepfather granted temporary custody of child after death of custodial mother).

(44) Texas: Tex. Fam. Code Ann. 102.003 (1996) (third parties may bring original action for custody of child); Tex. Fam. Code 102.003 (1996) (allowing court to grant visitation to interested parties). Jacobs v. Balew, 765 S.W.2d 532 (Ct. App. 1989) (stepparent does not have standing to seek custody absent another reason, such as the unfavorable environment provided by the parent).

(45) Utah: No statute. In re Interest of JWF, 799 P.2d 710 (Utah 1990) (stepfather who had legal obligation to support child had standing to assert custody); Gribble v. Gribble, 583 P.2d 64 (Utah 1978) (court may grant visitation to stepparent).

(46) Vermont: No statute. Paquette v. Paquette, 146 Vt. 83, 499 A.2d 23 (1985) (relevant statutes empower court to award custody to stepparent who stands in loco parentis).

(47) Virginia: Va. Code Ann. 20-124.1 (1995) (court can award custody to person with legitimate interest, including stepparent); Va. Code Ann. 20-107.2 (1995) (specifically recognizing stepparent visitation on divorce). Kogon v. Ulerick, 12 Va. App. 595, 405 S.E.2d 441 (1991) (common law right to visitation extends only to parents; note that this case was overruled by statute).

(48) Washington: Wash. Rev. Code Ann. 26.09.240 (Supp. 1996) (allowing court to grant visitation rights to any person on divorce). In re Marriage of Allen, 28 Wash. App. 637, 626 P.2d 16 (1981) (children not common to parties are nevertheless subject to the court's jurisdiction to determine custody); Palmer v. Palmer, 42 Wash. 2d 715, 258 P.2d 475 (1953) (court does not have jurisdiction to determine custody of child not common to parties).

(49) West Virginia: W. Va. Code 48-2-15 (1995) (granting visitation to interested third party on divorce of parents). Honaker v. Burnside, 182 W. Va. 448, 388 S.E.2d 322 (1989) (court may grant visitation to stepparent on best interests of child).

(50) Wisconsin: Wis. Stat. Ann. 767.24(3)(a) (Supp. 1995) (provides for an award of custody to a "relative" of child; "relative" of child includes stepparent under Wis. Stat. Ann. 48.02(15)); Wis. Stat. Ann. 767.245(1) (1981) (specifically recognizing stepparent visitation on divorce where the stepparent has acted in loco parentis). In re Custody of H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995) (court has equitable power to hear petition for visitation by unrelated person where court determines that person had parent-like relationship with child); Cox v. Williams, 177 Wis. 2d 433, 502 N.W.2d 128 (1993) (court was without jurisdiction to grant former stepmother standing to seek visitation, where after custodial father died there was no pending action before the court in which stepmother could intervene; stepparent may seek visitation only in actions for divorce).

(51) Wyoming: No statute.

Non-Biological Father Parental Rights

A man who is not a child's biological or adoptive father may still have custody rights in certain circumstances. A common scenario is when a man believes the child is his own and acts like the child's father around others. If the man is later learned not to be the biological father of the child, he may still retain custody rights after separation from the mother.

When Can a Man Who is Not the Biological or Adoptive Father of a Child Have Parental Rights?There is a strong presumption that a child's welfare is best served by being in the custody of a natural parent. As a result, non-parents have an uphill battle, and a number of cases end with natural parents winning custody. However, as a matter of public policy, a man who is the non-parental father of a child who has developed emotional parental feelings toward a child may be able to assert the rights as a biological or adoptive parent.

What Does the Court Take into Consideration in Granting Parental Rights?A court's decision in granting child custody right is always based on the best interests of the child regardless of whether the parties seeking custody are the biological or non-biologocial parents. Factors the Court considers in making their decision include:

Child's AgeThe child's age is often an important consideration that courts use in determining parental rights. A very young child may be considered unable to form a meaningful parental relationship while an older child's interest may best be served to protect a developed successful parent-child relationship.

Mother's SupportThe mother's support in deciding to grant parental rights to a non-biological or non-adoptive father will have significant weight in court. Public Policy has an inclination to protect a marital union, and so, the court may use its power to grant rights to support a current relationship.

The Relationship between Child and ManThe court will take into account the depth of the relationship between the child and the man. It will take into consideration whether the parent-child relationship has become well developed and successful.

Should I Seek an Attorney to Assist with a Child Custody Case?Child custody is often a complex and emotional process. A family attorney will help you in addressing the important issues that the court will evaluate in order to determine custody

GRANDPARENT AND PSYCHOLOGICAL PARENT RIGHTS INOREGON AFTER TROXEL

DIGEST OF POST-TROXEL CASES IN OREGON1. Harrington v. Daum, 172 Or App 188 (2001). Visitation awarded todeceased mother’s boyfriend over objection of birth father, reversed. After Troxelv. Granville, application of ORS 109.119 requires that “significant weight” be givento a fit custodial parent’s decision. The parent’s constitutional right is a superveningright that affects the determination of whether visitation is appropriate and preventsthe application of solely the best interest of the child standard.2. Ring v. Jensen, 172 Or App 624 (2001). Award of grandparentvisitation, reversed. Grandmother’s difficulty in obtaining the amount of visitationdesired does not demonstrate the pattern of denials of reasonable opportunity forcontact with the child as required by ORS 109.121.

3. Newton v. Thomas, 177 Or App 670 (2001). Interpreting a priorversion of ORS 109.119, the court reversed an award of custody to the grandparentsin favor of the mother. Under ORS 109.119, a court may not grant custody to aperson instead of a biological parent based solely on the court’s determination ofwhat is in the child’s best interest. The court must give significant weight to thesupervening fundamental right of biological parents to the care, custody and controlof their children. In a footnote, the court declined to consider the impact of theamendments to ORS 109.119 enacted by the 2001 Legislature.4. Williamson v. Hunt, 183 Or App 339 (2002). Award of grandparentvisitation reversed. The retroactive provisions of amended ORS 109.119 apply onlyto cases filed under the 1999 version of that statute and former ORS 109.121.Parental decisions regarding grandparent visitation are entitled to “special weight.”Without evidence to overcome the presumption that a parent’s decision to limit orban grandparent visitation is not in the best interest of the child, the trial court errsin ordering such visitation (but see Lamont case #7 below).5. Wilson and Wilson, 184 Or App 212 (2002). Custody of stepchildawarded to stepfather, along with parties’ joint child, reversed. Under Troxel,custody of the mother’s natural child must be awarded to fit birth mother andbecause of the sibling relationship, custody of the parties’ joint child must also beawarded to mother. (A Petition for Review has been filed in this case but heldin abeyance pending the review in Lamont.)6. O’Donnell-LaMont and LaMont, 184 Or App 249 (2002) (Seediscussion below case note 12 for en banc decision and discussion above andbelow - casenote 16 for Supreme Court decision). Custody of 2 children tomaternal grandparents, reversed in favor of birth father (mother deceased). Toovercome the presumption in favor of a biological parent under ORS 109.119(2)(a)(1997), the court must find by a preponderance of the evidence either that the parentcannot or will not provide adequate love and care or that the children will face anundue risk of physical or psychological harm in the parent’s custody.7. Moran v. Weldon, 184 Or App 269 (2002). Troxel applied to anadoption case. Adoption reversed where father’s consent was waived exclusivelybased upon the incarceration provisions of ORS 109.322. Troxel requires that birthfather’s consent may not be waived without “proof of some additional statutoryground for terminating parental rights* * *.”8. State v. Wooden, 184 Or App 537, 552 (2002), Oregon Court ofAppeals, October 30, 2002. Custody of child to maternal grandparents, reversed infavor of father (mother murdered). A legal parent cannot avail himself of the“supervening right to a privileged position” in the decision to grant custody tograndparents merely because he is the child’s biological father. Father may beentitled to assert parental rights if he grasps the opportunity and accepts somemeasure of responsibility for the child’s future. To overcome presumption in favorof father, caregiver grandparents must establish by a preponderance of the evidencethat father cannot or will not provide adequate love and care for the child or thatmoving child to father’s custody would cause undue physical or psychological harm.9. Strome and Strome, 185 Or App 525 (2003). Custody of 3 children topaternal grandmother reversed in favor of father The Court of Appeals ruled thatwhere the biological father had physical custody for 10 months before trial, and hadnot been shown to be unfit during that time, Grandmother failed to prove by apreponderance of the evidence that father cannot or will not provide adequate loveand care for the children or that placement in his custody will cause an undue risk

of physical or psychological harm, in spite of father’s past unfitness. (A Petition forReview has been filed in this case but held in abeyance pending the review inLamont.)10. Austin and Austin,185 Or App 720 (2003). In the first case applyingrevised ORS 109.119 and, in the first case since Troxel, the Court of Appealsawarded custody to a third party (step-parent) over the objection of a birth parent(mother). The constitutionality of the revised statute was not raised before the court.The court found specific evidence to show that mother was unable to adequatelycare for her son. The case is extremely fact specific. Father had been awardedcustody of three (3) children, two (2) of whom were joint children. The third child, atissue in the case, was mother’s son from a previous relationship. Therefore, siblingattachment as well as birth parent fitness were crucial to the court’s decision. (APetition for Review has been filed in this case but held in abeyance pending the review in Lamont. )Troxel applied in the guardianship context. In reversing a guardianship order thecourt held that: “*** guardianship actions involving a child who is not subject tocourt’s juvenile dependency jurisdiction and whose legal parent objects to theappointment of guardian are – in addition to the requirements of ORS 125.305 –subject to the requirements of ORS 109.119.” The constitutionality of amended ORS109.119 was not challenged and therefore not addressed by this court.12. O’Donnell-LaMont and LaMont, 187 Or App 14 (2003) (en banc) (Seediscussion above and below - case note 16 for Supreme Court decision). Theen banc court allowed reconsideration and held that the amended psychologicalparent law [ORS 109.119 (2001)] was retroactively applicable to all petitions filedbefore the effective date of the statute. The decision reversing the custody awardto grandparent and awarding custody to father was affirmed. Although 6 membersof the court appeared to agree that the litigants were denied the “* * *fair opportunityto develop the record because the governing legal standards have changed* * *,” aremand to the trial court to apply the new standard was denied by a 5 to 5 tie vote13. Winczewski and Winczewski, 188 Or App 667 (2003). [Please notethat the Winczewski case was issued before the Supreme Court’s decision inLamont.] The en banc Court of Appeals split 5 to 5 and in doing so, affirmed thetrial court’s decision, awarding custody of two children to paternal grandparents overthe objection of birth mother, and where birth father was deceased. For the firsttime, ORS 109.119 (2001) was deemed constitutional as applied by a majority of themembers of the court, albeit with different rationales. Birth mother has filed aPetition for Review in this case.14. Sears v. Sears & Boswell, 190 Or App 483 (2003). The court reversedthe trial court’s order of custody to paternal grandparents and ordered custody tomother where the grandparents failed to rebut the statutory presumption that motheracted in the best interests of a 4-year old child. Mother prevailed over grandparents,notwithstanding the fact that grandparents were the child’s primary caretakers sincethe child was 8 months old, and that mother had fostered and encouraged thatrelationship. Sears makes it clear that the birth parent’s past history and conduct arenot controlling. Rather, it is birth parent’s present ability to parent which is the predominateissue.15. Wurtele v. Blevins, 192 Or App 131 (2004). Trial courts custody orderto maternal grandparents over birth father’s objections. A custody evaluationrecommended maternal grandparents over birth father. The court found compellingcircumstances in that if birth father was granted custody, he would deny contact

between the child and grandparents, causing her psychological harm, includingthreatening to relocate with the child out-of-state. (A Petition for Review has beenfiled in this case but held in abeyance pending the review in Lamont.)16. O’Donnell-Lamont and Lamont, 337 Or 86 (2004). The SupremeCourt reversed the Court of Appeals and restored custody of the children tograndparents. Contrary to several prior Court of Appeals decisions, the SupremeCourt held that it is not necessary that a third party overcome the Troxel birth parentpresumption by demonstrating that the birth parent would harm the child or is unableto care for the child. Rather, the Supreme Court adhered to the legislative standardthat “the presumption could be overcome by a showing, based on a preponderanceof the evidence, that the parent does not act in the best interest of the child.” Id. at107. While a parent’s unfitness or harm to a child can be strong evidence toovercome the Troxel(and ORS 109.119) birth parent presumption, that presumptionmay be rebutted by evidence of any of the enumerated factors as well as otherevidence not specifically encompassed by one of the statutory factors. “The statutorytouchstone is whether the evidence at trial overcomes the presumption that a legalparent acts in the best interest of the child, not whether the evidence supports one,two, or all five of the nonexclusive factors identified in ORS 109.119 (4)(b).” Id. at108.17. Meader v. Meader, 194 Or App 131 (2004). Grandparents hadpreviously been awarded visitation of two overnight visits per month with threegrandchildren and the trial court’s original decision appeared to be primarily basedupon the best interests of the children and the original ruling was considered withoutapplication of the Troxel birth parent presumption. After the Judgment, birth parentsrelocated to Wyoming and grandparents sought to hold parents in contempt.Parents then moved to terminate grandparents’ visitation. At the modificationhearing, before a different trial court judge, parents modification motion was deniedon the basis that birth parents had demonstrated no “substantial change ofcircumstances.” Id. at 40. The Court of Appeals reversed and terminatedgrandparents’ visitation rights. The court specifically found that in a modificationproceeding no substantial change of circumstances was required. Id. at 45. Rather,the same standard applied a parent versus parent case [see Ortiz and Ortiz, 310 Or644 (1990)] was applicable, that is the best interest of the child. The evidencebefore the modification court included unrebutted expert testimony that the child’srelationship with grandmother was “very toxic; that the child did not feel safe withgrandmother; that the child’s visitation with grandmother was a threat to herrelationship with Mother and that such dynamic caused the child to develop PTSD.”The court also found “persuasive evidence” that the three children were showingsigns of distress related to the visitation.18. Van Driesche and Van Driesche, 194 Or App 475 (2004). The trialcourt had awarded substantial parenting time to step-father over birth mother’sobjections. The Court of Appeals reversed finding that the step-parent did notovercome the birth parent presumption. This was the first post - Lamont (SupremeCourt) case. Although mother had encouraged the relationship with step-fatherwhile they were living together, and although such evidence constituted a rebuttalfactor under ORS 109.119, this was not enough. The court found that such factormay be given “little weight” when the birth parent’s facilitation of the third-party’scontact was originally in the best interest of the child but was no longer in the bestinterest of the child after the parties’ separation. Step-father contended that thedenial of visitation would harm the children but presented no expert testimony.