What Are Your Custody Rights as a Non-Biological Parent?

Flicker, Kerin, Kruger & Bissada LLP

California is home to many families who do not fit the traditional definition of a nuclear family. Blended families, adoptive parents, and foster parents can provide children with safe and secure environments in which to grow up. However, the rights granted to adults caring for children in these situations can vary greatly, specifically during a divorce.  

Before pursuing a marital dissolution, it is in your child’s best interest to determine who may have custodial rights. 

California and the Rights of Legal Parents

Parental rights are the rights and responsibilities granted to a child’s legal parents or guardians. All legal parents are presumed to share the same parental rights:

  • The right to spend time and maintain a relationship with their child(ren), known as physical custody
  • The right to make legal decisions on their child(ren)’s behalf, known as legal custody

These rights may be reconsidered during divorces, separations, custody disputes, and dependency cases. Custodial and dependency cases are decided based on the child’s best interests. Ideally, legal parents will retain all of their rights and use a parenting plan that outlines when a child will spend time with each parent or guardian and how legal custody decisions are handled between the legal parents or guardians. However, if the court deems that one parent is a danger to the child, that parent may have restrictions placed on their rights to legal and/or physical custody. 

Who Has Parental Rights in California?

Relatives who care for a child in a parenting capacity but are not recognized as a legal parent may have grounds to pursue custody. This claim can be successful if the court finds that the legal parents are unfit to care for the child(ren). 

In California dependency court, there are four categories into which a potential parent may fall:

  • Biological mothers and fathers: The genetic parents of the child in question or those who have a judgment of paternity from a family law court. They automatically have full parental rights toward a child, unless they cede those rights or a court strips them of those rights.
  • Presumed parents: The names of the individuals on a child’s birth certificate or on a family court order establishing parentage. They have full parental rights, unless they or an alleged parent contests parentage.
  • Alleged parents: The individuals who claim to be a child’s parent in court or identified as the father by a child’s biological mother. They have the right to pursue recognition as a biological or presumed parent but do not automatically have parental rights.
  • De facto parents: An individual caring for a child and acting as their parent, regardless of their legal relationship. This may include other relatives, family friends, foster parents, or other caretakers. To be recognized as a de facto parent, you must petition the court for recognition after a child becomes involved in a dependency case.

The difference between biological and presumed parents rarely matters during divorces and custody disputes. Instead, the critical question is that of legal parentage. 

Both presumed and biological parents can be a child’s legal parents. For example, a biological mother is considered the child’s legal parent, unless she cedes her parental rights to an adoptive parent, the state, or is stripped of her rights by the court due to endangerment. Meanwhile, an adoptive mother is the child’s officially recognized parent once the adoption is finalized. In a divorce between adoptive parents, the child’s biological parents would not be considered for custody outside of exceptional circumstances.

Note that stepparents do not necessarily fall under any of these categories. Instead, they receive separate consideration under the law.

California Stepparent Custody Rights

Stepparents occupy a unique position within family law. They do not receive full parental rights to a child, unless they pursue adoption or guardianship of their stepchild. While they are married to the child’s legal parent, stepparents may:

  • Make legal and medical decisions with the signed consent of their spouse
  • Enforce household rules and discipline
  • Establish legal guardianship should their spouse pass away
  • Adopt the children with the approval of all recognized parents

In a divorce, stepparents do not necessarily have custodial rights toward a stepchild. According to California Family Code § 3101, “the 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.” The stepparent must petition the court for the right to spend time with their stepchild, since it is not automatically awarded to stepparents. 

Additionally, regulations do not grant stepparents special consideration for legal custody without the explicit consent of the biological/presumed parents. If a stepparent wants to pursue legal or sole physical custody of a stepchild during a divorce without a prior adoption or established guardianship, they must seek recognition as a de facto parent first. If that is granted, then they may have grounds to seek legal or physical custody.

Pursuing Custody During Your Divorce

Whether you are a parent by birth, adoption, or marriage, you may have custodial rights during your divorce. At Flicker, Kerin, Kruger & Bissada LLP, our experienced family law attorneys can help you navigate the complexities surrounding custody rights for non-biological parents.We have decades of experience representing clients seeking custody during divorces and other custodial disputes. We can answer your questions, explain your options, and help you seek the best possible outcome for your children and family. Learn more about how we can assist you by scheduling your consultation with our Bay Area family law firm today.

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