For many children, a loving stepparent is just like a parent. Maybe the stepparent came into their life when they were very young, and the child cannot remember a time when they didn’t live with the stepparent. Maybe the child’s natural parent was absent or abusive, and the stepparent stepped in and fulfilled the role of a true parent. But what happens if the stepparent, and the child’s legal parent to whom they are married, divorce? There are visitation rights for non-custodial parents, but a stepparent is not a parent under the law. Can stepparents get visitation rights?
In Utah, the answer is maybe—but it won’t be easy. While a child may consider a stepparent simply a parent, the law looks at things differently, and visitation is available to stepparents only under very limited circumstances.
Stepparent rights during marriage to their stepchild’s parent are limited. In some situations, the stepparent may not even have the ability to watch the child while their spouse (the legal parent) is at work, if the other legal parent wants to exercise a “right of first refusal” to care for the child. Utah law presumes that it is better for a child to be cared for by a parent than a “surrogate”—a category into which stepparents fall.
Those stepparent rights during marriage to a child’s parent generally come from and through the marriage. That includes the right to spend time with a child. When the marriage ends, the law does not ordinarily grant custody to stepparents, or even consider doing so. There is a mechanism for stepparents to seek visitation with the child of a former spouse, but the stepparent seeking visitation must prove that visitation would be in the child’s best interests, along with other criteria discussed below.
When a child’s parents divorce, they often tell the child, “We may not be married to each other anymore, but we will always be your parents, and we will never stop loving you.” While a stepparent also may continue to love a stepchild after divorce, unlike with a parent, there is no continuing legal relationship between them.
In some cases, the stepparent’s ex-spouse will be willing to support a continued relationship between the stepparent and stepchild after divorce. This is usually an informal arrangement that can be beneficial to everyone involved. However, if the child’s legal parent changes their mind about letting the child see the former stepparent, they can simply terminate the arrangement, which may be confusing and upsetting for the child and painful for the former stepparent.
What can a divorcing stepparent do if they don’t want to lose their relationship with their stepchild? One option is to pursue visitation under the Utah Custody and Visitation for Persons Other Than Parents Act (Utah Code 30-5a-103).
That law states that it is Utah’s public policy that parents retain the fundamental right and duty to exercise control over their child’s care and upbringing and that there is a presumption that a parent’s decisions are in a child’s best interests. However, the law goes on to say that that presumption can be rebutted and custody or visitation rights can be granted to someone other than a parent.
In order to rebut the presumption and be granted visitation, a stepparent must rebut the presumption with “clear and convincing evidence,” which is a fairly high legal standard to meet. The stepparent must establish that:
A stepparent seeking visitation with a stepchild may file a petition under this section of the law as part of the divorce or custody case. However, if the child’s other legal parent (aside from the stepparent’s spouse or ex-spouse) is involved in the child’s life and not neglectful or abusive, the stepparent will not be able to get a legal right to visitation under this act.
The best time to ensure that you will always have the right to see and spend time with your stepchildren is while you are still married to their parent. Stepparent adoption is a process that allows you to become the legal parent of your stepchild, with all the rights of any legal parent. If you should eventually divorce the child’s other parent, you would need to resolve issues of child custody, visitation, and child support. But if you have truly taken on a parental relationship with your stepchild, chances are you don’t want to lose that relationship (including its obligations) to a divorce.
If you have questions about your rights as a stepparent, including the right to visitation with a stepchild, please contact BartonWood to schedule a consultation.