Step-Parents Custodial Rights

Publication: Bar Association of San Francisco Bulletin, Volume 5, Number 5

By the time you are reading this article, Sandra Bullock may have decided to divorce her allegedly cheating husband, Monster Garage star Jesse James. Various reputable sources (TMZ, Perez Hilton, Radar Online) have reported that if she stays in the marriage, it will be for the sake of her step-children. Bullock has said that she has a very tight bond with Sunny, James' six year old daughter with his porn-star/director ex-wife, Janine Lindemulder. Only a few months ago, Bullock submitted a declaration in support of James' motion for sole legal and physical custody of Sunny, which was granted (albeit temporarily, while Lindemulder finishes probation after serving after serving a six month prison sentence for tax-evasion). Bullock has been a primary caretaker of Sunny since she wed James in 2005.

Staying in the marriage may be the only way that Bullock can guarantee a role in Sunny's life. Although Family Code Section 3101 provides that a trial court "may grant reasonable visitation to a stepparent if visitation by the stepparent is determined to be in the best interest of the minor child," a trial court must also apply a presumption favoring the parents' decision that visiting the stepparent is not in the best interest of their child. For example, in a 2003 appellate case, In Re Marriage of James W. and Claudine W., 114 CA4th 68, Santa Barbara stepdad James W. married mom when her child was very young. Upon their divorce, stepdad visited with the child regularly. Mom sought to terminate stepdad's visitation, alleging that he was relocating out of town and it would not be in the child's best interest to continue visitation. Bio-dad successfully moved to intervene in the custody dispute and joined mother in requesting that the court terminate visitation with step-dad. The trial court appointed a psychologist to investigate and held that it was in the child's best interest to continue visitation, given stepdad's role in the child's life.

The Court of Appeal reversed. The panel held that Family Code Section 3101 can only be applied if the trial court also applied the rebuttable presumption favoring parental decisions. The presumption is that fit parents act in the best interests of their children, and when a fit parent's decision is judicially challenged, the trial court must give the parent's decision special weight. The panel specifically referred to the U.S. Supreme Court grandparent visitation case, Troxel v. Granville, 530 U.S. 57 (2000), which held that the Due Process Clause protects the fundamental rights of parents to make decisions concerning the care, custody and control of their children. The end result is that it is extremely difficult for a step-parent to gain visitation rights over the objection of a fit parent.

When it comes to visitation with her stepchildren, Bullock is currently at the mercy of James, specifically regarding his youngest, Sunny. Sunny's mom recently stated to TMZ that "If Sandra decides to keep a relationship going with our daughter, I would in no way stop that." However, Lindemulder currently has no decision-making ability in regard to Sunny. James successfully argued a few months ago that she was an unfit parent due to her lifestyle choices. Right now, if Bullock requested visitation pursuant to divorce, James would probably be her only possible obstacle. But in an ironic turn of events, Lindemulder just filed a motion seeking sole custody based on James' lifestyle.

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