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Andrews: Can you protect the stepparent bond after a divorce?

July 16, 2014
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By Julie Andrews

The most important adults in a child’s life are not always the biological mother and father. Most of us are familiar with the Nigerian proverb “It takes a village to raise a child.” It means that the upbringing of a child is a cumulative effort of parents, siblings, distant relatives and even neighbors. According to the U.S. Census Bureau, our country has latched on to this theory. In 2013, a reported 1,302,000 children were living with someone other than a parent or grandparent (compared to 1,140,000 in 2012). (See U.S. Census Bureau, “America’s Families and Living Arrangements,” 2013, Table C2)

On June 5, 2000, the United States Supreme Court decided the conflicting legal rights of parents and grandparents when a grandparent sought visitation with a grandchild in the seminal case of Troxel v. Granville, 530 U.S. 57 (2000). This case analyzed the 14th Amendment and a parent’s right to administer the care, custody and control of their children as they see fit. The Troxel Court explained that “[t]he Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property, without due process of law.” Id. at 66. This amendment also “provides heightened protection against government interference with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521 U.S. 702, 719 (1997). Troxel held that grandparents had the right to seek visitation with a grandchild while balancing the biological parent’s rights. Today, all states, except Florida, have statutes giving grandparents the right to seek visitation of their grandchildren. (Jeff Atkinson, “Shifts in the Law Regarding the Rights of Third Parties to Seek Visitation and Custody of Children,” 47 Fam. L.Q. 1 (2013)). Indiana’s controlling statute is found at Ind. Code 31-17-5-1. A grandparent has standing to seek visitation after a biological parent dies, a divorce occurs or a child is born out of wedlock.

The right of grandparents to seek visitation of a child has expanded to “third-party visitation” by multiple people who have close contact with a child.

High divorce rates, death and paternity situations result in an increased number of blended families dealing with complicated issues. One of these very complicated dynamics is stepparent bonding. In a society that requires both household adults to work, it is not uncommon for a stepparent to spend a significant amount of time with a stepchild, even stepping into a parental role.

A subsequent divorce between a biological parent and stepparent can have a devastating impact on the stepparent/stepchild relationship that often rivals that of a biological parent and child. This relationship is so significant that nine of our states recognize stepparents as having a right to seek visitation of a child. See Atkinson, supra. While Indiana does not have a controlling statute on this issue, the Court of Appeals has held that a stepparent has standing to seek visitation under common law if there is “the existence of a custodial and parental relationship and that visitation would be in the best interests of the child.” Schaffer v. Schaffer, 884 N.E.2d 423, 428 (Ind. Ct. App. 2008).

The court will apply the factors found in grandparent visitation cases. Id. The court will consider “(1) the presumption that a fit parent acts in his or her child’s best interests; (2) the special weight that must be given to a fit parent’s decision to deny or limit visitation; (3) whether … visitation is in the child’s best interests; and (4) whether the parent has denied visitation or simply limited.” Id. at 427 (citing McCune v. Frey, 783 N.E.2d 752 (Ind. Ct. App. 2003)).

One distinguishing feature between grandparent visitation cases and stepparent visitation cases is the antagonistic nature of the relationship. What is not answered by Indiana’s small body of caselaw on this issue is what it means for a biological parent to “limit” time between a stepparent and stepchild. It is quite easy to find a grandparent visitation case in which the respondent/parent prevails because they offered sufficient time to the grandparent and the grandparent was unable to prove that deference should not be given to the parent’s decision. However, rulings in reported cases on stepparent visitation requests do not defer to parental decisions. A review of the handful of cases that exist on the issue of stepparent visitation reflects that most biological parents agreed to visitation and then sought to modify following a subsequent marriage or having “buyer’s remorse.” In Schaffer, the trial court ordered stepparent visitation. The biological mother later sought to modify and the court not only denied her request but also increased stepfather’s visitation, which was upheld by the Court of Appeals.

This body of law will continue to grow as families become more blended. Some issues to consider in this area include the fact that visitation rights do not create a reciprocal responsibility for a stepparent to financially support a stepchild. Also for consideration, the court that decides to grant stepparent visitation will have to create a schedule that is cognizant of the other biological parent’s time. At the heart of this issue is doing what is in the child’s best interests. If parents act as mature adults, they should uphold the child’s best interests without court involvement. Ultimately, the child at issue becomes a “hot potato” being passed between mom, dad, grandma and stepparent – the entire village.•

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Julie Andrews–jandrews@cohenandmalad.com–is a partner at Cohen & Malad LLP. Her practice is focused on family law matters. Andrews handles a variety of litigation involving contested divorce, child custody, parenting time and guardianship issues. She can be contacted at jandrews@cohenandmalad.com. The opinions expressed are those of the author.

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