Legal Question in Family Law in California
Here is the scenario. Girl meets boy, they get intimate and 9 months later girl has baby. Not too long after baby is born the father dies and leaves a social security for the child. About then the child is 6 mother meets a new man and marries him, however he does not adopt the child because if he did she would lose the money from her biological father. The step-dad and mother have another child. About when new child is about 3 and the mother's first child is 13 mother and step-dad/father get a divorce due to problems that the mother will not admit to, also she cheated during the marriage. They go to court for divorce and custody of the younger child and get granted 50/50 legal and physical custody of the boy. However the girl is stuck with the mother. She wants to be able to see her brother the weeks he is not with her and her mother as well as she wants to see her step-father. Is there any way the step-father can take this matter to court and get 50% physical custody of the daughter, or older child, even though he is not her biological father?
5 Answers from Attorneys
Not being the biological father and not having adopted her, the courts will not recognize the step father as having any legal right to request anything regarding the girl. There are some obscure legal doctrines that can be used to compel a man to take on parental responsibilities for a child that is not his biologically nor by adoption, but they rarely apply and I have never heard of them being used by the man to assert rights. In fact I think by purposely avoiding stepping into a "common law father" role to avoid losing SSS benefits, the doctrine would not apply anyway.
I respectfully disagree with Mr. McCormick, although I do believe he is a great attorney and graciously offers a great deal of assistance to people here on Law Guru. CA family code 3101 allows a court to grant a stepparent reasonable visitation if it is in the child's best interest. You would likely need an attorney to assist you. For further information, visit http://www.ellifritzlaw.com
I would agree with Ms. Ellifritz. Remember, that the rights of visitation, are as much the rights of the children, as they are those of the adults in question. I would highly suggest you immediately speak with an attorney that specializes in family law matters. Good luck!
I do not disagree with Ms. Ellifritz and Mr. Scheneider about section 3101. And I overstated matters when I said that a step-father has no rights. But they seem to be answering a different question from yours. Visitation is not custody. You asked about getting custody, specifically 50% custody. Reasonable visitation can be ordered, but that is going to be visits, not custody, and not 50/50.
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