Are There Non-Biological Mom's Visitation Rights in California?
Answered by Kathryn Kendell, executive director of the National Center for Lesbian Rights. April 12, 2002
Q: Dear Kate,
My ex-partner and I were in a 12-year relationship. We discussed and planned to have children almost from the start. In 1997, I gave birth to our daughter through artificial insemination with an anonymous donor. A year later, my partner was able to adopt her in California through second-parent adoption. When she gave birth to our son in 1999, we were able to use the same donor. But when we separated in early 2001, I hadn't completed my son's second-parent adoption.
We shared custody of both children for about six months and stated that the children should be kept together. But last summer, my ex decided that our son should be with her and our daughter with me. Since then, things have gone downhill, and she no longer allows me to see our son. She has visitation, which we are currently mediating, for our daughter. I have been told that in the current situation in California, I have no chance even of getting visitation of our son. Is this true?
Thank you for your time.
Cynthia
A: Dear Cynthia,
I am very sorry to hear about your situation. This is obviously a terribly unfair situation, particularly where your son is not only being deprived of a relationship with one of his mothers but where his relationship with his sister is also being affected.
In many states, a person in your situation, who is not a legal parent but who has raised a child since birth and assumed all of the responsibilities of a parent, has the right to ask a court for visitation and/or custody rights.
Unfortunately, that is generally not true in California, except in very limited situations. In several appellate court decisions, California courts have held that a non-legal parent has no rights regarding the child of a former partner, even when he or she has contributed equally to raising the child. These courts have treated the non-legal parent as a stranger to the child, meaning that the non-legal parent does not have the right to ask a court for custody or visitation. The only exception is when the non-legal parent can show clear and convincing evidence of detriment to the child as a result of the child's separation.
In your case, you would have to sit down with a lawyer and determine whether you could meet this very demanding legal standard, based on all of the specific facts and circumstances of your case. In addition, even if there is a realistic chance that you can meet it, you must also determine whether you are willing to go through the trauma and expense of litigation.
Regardless of your decision about whether to pursue litigation, we would encourage you to try to mediate the situation with your partner.
Good luck.