ILNews

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

July 16, 2014
Back to TopCommentsE-mailPrintBookmark and Share
andrews-julie-mug Andrews

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.•

__________

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.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  2. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  3. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

  4. Well, I agree with you that the people need to wake up and see what our judges and politicians have done to our rights and freedoms. This DNA loophole in the statute of limitations is clearly unconstitutional. Why should dna evidence be treated different than video tape evidence for example. So if you commit a crime and they catch you on tape or if you confess or leave prints behind: they only have five years to bring their case. However, if dna identifies someone they can still bring a case even fifty-years later. where is the common sense and reason. Members of congress are corrupt fools. They should all be kicked out of office and replaced by people who respect the constitution.

  5. If the AG could pick and choose which state statutes he defended from Constitutional challenge, wouldn't that make him more powerful than the Guv and General Assembly? In other words, the AG should have no choice in defending laws. He should defend all of them. If its a bad law, blame the General Assembly who presumably passed it with a majority (not the government lawyer). Also, why has there been no write up on the actual legislators who passed the law defining marriage? For all the fuss Democrats have made, it would be interesting to know if some Democrats voted in favor of it (or if some Republican's voted against it). Have a nice day.

ADVERTISEMENT