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In Utah, Can a Step-Parent Get Visitation of Custody of a Child Who Is Neither His/Her Natural Nor Adopted Child?

Can a step-parent get visitation or custody of a child who is neither his/her natural nor adopted child in Utah? The short answer is that it’s legally possible, but just how and when a step-parent can get visitation or custody is somewhat unclear right now. Here’s why:

In 2008, the Utah Legislature enacted the Custody and Visitation for Persons Other Than Parents Act, Utah Code Ann. §§ 30-5a-101 to -103 (Supp. 2008). This was meant to answer the question of when a person (such as a step-parent) could get custody or visitation of a non-biological, non-adoptive child. Unfortunately, appellate courts have not yet interpreted this statute. Why does that matter? Until courts interpret and apply statutes to actual cases (i.e. case law), no one can be sure how the statute is going to be applied by the courts in a given scenario.

So, let’s look at the case law that controlled this issue before this act was enacted. There are five major cases of note.

(F.Y.I.:“standing” is the legal term that roughly means you have a right to ask the court to decide an issue. If you don’t have standing you don’t even have the right to ask the court to consider an issue. But having “standing” is not the same as “getting” the thing you’re asking for; it means the court will consider giving you the thing.)

Gribble v. Gribble, 583 P. 2d 64 (Utah 1978) is the most cited case for step-parent visitation, and its facts were unusual. Gribble married a woman who had a two month old son (not his). Over the next four years, the Gribbles had four children who either died at birth or during infancy. The couple then divorced, and Gribble wanted visitation rights for the four year old boy whom he thought of as his own. The boy had no contact with his biological father and the mother admitted Gribble loved the boy. The Gribble court seemed determined to give him visitation rights, perhaps because they felt compassion over the loss of his four biological children and were reluctant to take away rights to the one child he had left in his life.

The Gribble court looked to a (then) recent Pennsylvania case, Spells v. Spells, 378 A.2d 879 (1977), which said, “Courts must acknowledge the fact that a stepfather (or stepmother) may be the only parent that the child has truly known and loved” and held that a step-parent who stands “in-loco parentis” should be allowed standing to petition for visitation. (In loco-parentis means “one who stands in the place of a parent” and is a well-established common law doctrine). The Gribble court expressly adopted this view, holding that where a step-parent stands “in-loco parentis” a court may grant standing to determine if visitation is in the child’s best interests. The Gribble court held that this holding applied only to visitation and not custody because Utah Court Ann. §30-3-5 “allows visitation where custodial rights would not exist” so courts have “greater flexibility in determining visitation than” custody. (Gribble at 67).

The Gribble court also opined that only the child or the “in-loco parentis” step-parent could terminate the relationship (which was later recanted in the Jones v. Barlow decision, which is treated below).

In Hutchinson v. Hutchinson, 649 P. 2d 38 (Utah 1982), Hutchinson married a woman who had a seven month old daughter. The couple then had two daughters together. When the couple divorced, evidence showed that the mother was a heavy drinker. Despite a blood test showing he was not the father of the oldest girl, the husband was awarded permanent custody of all three girls because his name was on her birth certificate and the court determined it was in the child’s best interest. The mother appealed. The Utah Supreme Court held that where a custody controversy is between a parent and non-parent, that there is a presumption in favor of the parent, but, evidence can be presented to rebut that presumption. The court held that if the presumption is rebutted, then the parent and non-parent stand on equal footing and the court may use the best interest of the child standard at that point.

In State in Interest of JWF, 799 P. 2d 710 (Utah 1990), a couple separated after less than a year of marriage (but did not divorce). Not long after, the wife gave birth to a baby and abandoned it. The infant was placed in State Family Services. Paternity tests clearly showed it was not the husband’s (the couple was white and the infant’s father was black). However, when he learned of the child he petitioned for custody. The court held he had standing to petition for custody for two reasons. One was because he was a step-parent still married to the biological mother. The other was because, as a step-parent, he at that time had the legal obligation to support the child under Utah Code Ann. § 78-45-4.1 (a law that has since been repealed).

In Jones v. Barlow, 154 P. 3d 808 (Utah 2007), a lesbian couple had a child together by having one woman (Barlow) be artificially inseminated. When the child was two years old, the couple split up and Barlow cut off all ties to Jones. Jones brought suit seeking custody and visitation claiming she had standing under the “in-loco parentis” common law doctrine.

The Utah Supreme court determined that, at common law, the “in-loco parentis” doctrine did not take away a natural parent’s right to terminate the “in-loco parentis” relationship and that terminating the relationship ended all rights and obligations. Thus the court expressly recanted the opinion in Gribble that only the child or the “in-loco parentis” step-parent could terminate the relationship, and determined it could be ended by either the parent or step-parent. (Id. ¶ 19) The court found that unlike adoption, “in-loco parentis” is temporary and as such, conferring permanent rights under it is repugnant to the doctrine itself. (Id. ¶ 23).

The Jones court then clarified that in Gribble, it was not the common law doctrine of “in-loco parentis” which gave Gribble standing, rather it was conferred by statute, and the “in-loco parentis” doctrine was only used to interpret the statute. Therefore, the court held that recognizing a legally protectable right under the “in-loco parentis” doctrine would be an “unwarranted expansion” (Id. ¶ 29) and that Jones’ “in-loco parentis” status ended when Barlow moved out with the child. Further, the court declined to craft judicial doctrines based on “de facto” or “psychological parent” doctrines used in other states, because “carving out a permanent role in the child’s life for a surrogate parent” could deprive a parent of parental rights. (Id. ¶ 33).

The holding in Jones led to widespread fears about its impact on step-parents, prompting the Utah legislature to enact the Custody and Visitation for Persons Other Than Parents Act (Utah Code, Title 30, Chapter 5a, Sections 101 – 104). The act establishes that the natural parent’s decisions are in the best interest of the child; but that the presumption is rebuttable. Meaning, if a parent does not want to give custody or visitation to a step-parent, then that is presumed to be in the child’s best interests. However, this presumption can be overcome by a step-parent showing all of the following:

(a) the person has intentionally assumed the role and obligations of a parent;
(b) the person and the child have formed an emotional bond and created a parent-child type relationship;
(c) the person contributed emotionally or financially to the child’s well being;
(d) assumption of the parental role is not the result of a financially compensated surrogate care arrangement;
(e) continuation of the relationship between the person and the child would be in the child’s best interests;
(f) loss or cessation of the relationship between the person and the child would be detrimental to the child; and
(g) the [other] parent: (i) is absent; or (ii) is found by a court to have abused or neglected the child.

The Custody and Visitation for Persons Other Than Parents Act requires that its seven elements must be proven by clear and convincing evidence. Evidence standards range from preponderance of the evidence (low) to beyond a reasonable doubt (highest, typically only used in criminal cases). The clear and convincing evidence standard lies between the two. Clear and convincing evidence is required here because the U.S. Supreme court held that if a state requires only a preponderance of the evidence standard where it seeks to deprive natural parents of custody of their children it is a violation of the natural parents’ due process rights (See Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 [1982]). So evidence as to all seven elements must be shown to be more highly probable to be true than not, and must give rise to a firm belief or conviction.

After the Custody and Visitation for Persons Other Than Parents Act was enacted but before it took effect, another notable case came to the court. In Strauss v. Tuschman, 216 P. 3d 370 (Utah Ct. App. 2009), a couple initiated divorce proceedings, and the district court granted a bifurcation of the divorce leaving matters of property division, alimony, and visitation for later resolution (this means the couple’s marriage was legally dissolved while all of the other matters were still being decided). Prior to dissolving the marriage, the husband was granted temporary visitation with his step-daughter (the wife’s natural daughter) over the wife’s objections. After Jones was decided, but before the bench trial on the property and alimony matters, the mother moved to assert that the husband had no standing to petition for permanent visitation rights. Citing Jones, the court agreed that the father had standing prior to the dissolution of the marriage but once the marriage was dissolved, his “in-loco parentis” status was terminated and he lost standing to petition for visitation rights. The act may have prevented this result, but while it was already enacted, it was not yet in effect.

Because no appellate courts, to date, have interpreted the Custody and Visitation for Persons Other Than Parents Act; it is unclear yet how it will be applied to step-parents. There are some potential difficulties that may arise due to the language used in the act. For example, the definition of “person other than a parent” in the act includes both “current or former step-parents” which is contrary to Jones and Strauss, where the court held that standing to seek visitation ended when the “in-loco parentis” relationship ended which in both cases the court held occurred when the natural parent ended the relationship. So, how much time can pass before a “former step-parent” loses standing to seek visitation or custody? Is it indefinite as long as the step-parent can meet the seven elements? What if one or more of the elements aren’t met until well after the divorce, does being a “former step-parent” still give rise to standing?

Also, potentially problematic is the seventh element (§ 30-5-103(g)), which says that the “other parent” must be shown to be either absent or to have abused or neglected the child. Who is the “other parent” referring to here? Is it the spouse of the step-parent or the biological non-spouse parent? If a situation were to arise where the biological non-spouse parent was in the picture but the element could apply to the spouse, does the step-parent have to show by clear and convincing evidence the seventh element as to the spouse and the non-spouse biological parent?

For example, imagine a situation where a mother with sole custody dies (making her absent), and the biological father has regular visitation with the child every other weekend (so he is neither absent, abusive nor neglectful). But the mother’s husband (step-father) has primarily raised the child since birth and always thought of it as his own. Can he seek custody, or at least visitation, based only on his spouse (the mother) meeting the seventh element? Or must the element be applied to the biological father? If the latter, his standing must fail.

The statute may have inadvertently made seeking visitation by a step-parent more difficult than it was prior to enactment of the statute, since the statute requires that all seven elements be proven under a clear and convincing standard, the same as must be proven for custody. However, given that the courts have previously held that there is “greater flexibility in determining visitation than there is in determining custody” (Gribble at 67), courts may continue to use such flexibility where only visitation is being sought. Time will tell.

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