Stepparent vs Custodial Parent Visitation

**momincali** · 02-15-2009, 04:57 PM

My question involves a child custody case from the State of: CA My ex husband is going out of the country for possibly 1 year with his job. He wants me to continue to fly our daughter to spend time with his wife. I had informed him I was not going to send her due to the fact he will not be there at the time of visitation. He said I have to send her and that is his visitation time and our daughter can spend it with her "stepmother", even though he is not in the country. Legally do I have to send her? Is there a law with provisions mentioned that I, as the "birth parent" have legal right to have the visitation time with my daughter, when her father, the "birth parent" is going out of town(country) before visitation is scheduled?

**LawResearcherMissy** · 02-16-2009, 04:26 PM

Why are you putting stepmother in quotation marks? She's married to your ex, therefore, she is your child's stepmother. Scare quotes are silly.

With respect to visitation, what does the visitation order say?

Legally, step-parents have no inherent right to visitation, but the court is empowered to grant it if it is found to be in the best interests of the child. Your ex-husband could very well drag all of you into court to petition to have the visitation modified such that the child's stepmother also has visitation.

If the child has established a good relationship with her stepmother, it would not be unheard of for the court to grant visitation so that relationship can continue in her father's temporary absence.

Nor would it be unheard of for the judge to ask you why you're trying to keep your daughter from being fully active with the other part of her family.

**momincali** · 02-21-2009, 03:29 PM

My daughter is 11 years old and has expressed to me on several occasions that if she is there to visit her dad, then she wants him to be present, not out of town. The last time she was visiting her dad he was out of town on business and three days later she called me to come home. It is not that she doesn't love her stepmother, but she is not fond of having to go and visit without her dad being present. The visitation order is from 2002 and there is no mention of my daughter having to visit her stepmother when her dad is away. Might I mention, theses orders were set forth for visitation to be in the state of California. He moved to the State of Tennessee while my daughter was visiting and did not tell me he was moving. Isn't that against court orders? My orders states: Neither parent shall remove the child from the state of california,the county of san diego, the county of fresno, the county of sacramento, in order to change the residence, without the written notarized consent of both parents or the approval of the court. So her having to fly 5 hrs to visit, which used to be 1 1/2 hrs. and a two hr time difference nakes it also draining on her. Not mention again, her dad is not home.

**LawResearcherMissy** · 02-21-2009, 06:47 PM

Then make your argument to the court that it is not in your daughter's best interests to visit without her father present, citing the reasons you've given here.

The court looks at it from a best interests perspective.

**climbing** · 02-23-2009, 07:50 AM

I'm no attorney, but I don't think making any sort of argument to the court is necessary in this situation unless the stepmother is a party in your current custody order. Unless the order names her along with Dad when talking about visitation, there's nothing to change in the order...and nothing to argue to the court.

If the order only mentions dad, then it's simple enough. You're still making the child available for visitation per the orders (i.e. you're willing to fly her there for DAD's visitation), but Dad can't take advantage of that availability because he is outside of the country.

The only reason to take it to court is if Dad wants to modify the visitation time for the next year...for example, if he's going to come home for periods of time and wants to see her then instead of the usual schedule. Otherwise, it's a simple case of him turning down the visitation he is entitled to because he's not there to take it, regardless of what he says about stepmom.

Either way, if he wants it changed, it's up to him to take it to court for modification. That's his burden because he's the one wanting the change. You don't need to worry about it until that happens.