Higgins v. Cumber – Step-parent Rights Weighed by State High Court

Approximately one in three children will live at least some portion of their childhood with a stepparent, according to recent statistics. These are individuals who will play an important and lasting role in children’s lives.

However, from a legal standpoint, stepparents – even residential stepparents – generally have fewer rights than even legal guardians or foster parents. Still, in situations where a stepparent voluntarily receives a stepchild into his or her family and treated the child as a family member, he or she could be considered in loco parentis, meaning he or she assumes an obligation to maintain and support the child.

But absent a formal adoption, a stepparent who later separates from the child’s biological parent and then seeks to establish visitation will face an uphill battle. It is absolutely possible, particularly if the child lived with the stepparent and the relationship was long-term. However, it’s not an automatic right. If a biological parent opposes, the matter will have to be addressed in family court. more Our Gary child custody lawyers know the Indiana Supreme Court established the visitation rights of stepparents in the 2008 case of Schaffer v. Schaffer. Here, the court had to weigh the parental presumption that favors allowing parents autonomy in making decisions over the care, custody and control of the child in contrast with the child’s best interests.

Mother appealed the lower court’s allowance of visitation between her biological daughter and her ex-husband, the girl’s former stepdaughter. The ex-husband was not the child’s biological father, but had been listed as her father on her birth certificate. He provided and cared for her the first 2.5 years of her life. He maintained visitation throughout their divorce proceedings, and because of the prior custodial relationship, was also awarded long-term visitation with the child. Mother requested termination of her ex-husband’s parental rights because he was not the child’s biological father. The lower court denied this request, and the decision was upheld by the Indiana Supreme Court.

The court did find that in initial stepparent visitation orders, stepparents should be held to the same standard as blood relatives, such as grandparents. However, where it is in the best interests of the child, such visitations will be allowed.

Other states are increasingly being asked to weigh these same type of issues. One such case, Higgins v. Cumber, was recently considered by the Montana Supreme Court.

Here, biological mother appealed visitation granted to the child’s stepmother after child’s father died. Paternity had been established soon after child’s birth, and biological father was named primary residential parent six months after baby was born. Just one month later, father married another woman (stepmother). During this time, stepmother became an important figure in the child’s life, performing many of the essential parenting responsibilities for the child. Although she never adopted the child, she was called “mom.”

Five years later, father died. The child remained with stepmother for a short time, but the biological mother sought – and was granted – primary residential custody. Later, the child’s stepfather successfully adopted him.

The stepmother made repeated efforts to remain contact with the child, but biological mother eventually ended that communication. Stepmother then sought visitation rights through the court, which biological mother and adoptive stepfather opposed.

Trial court granted stepmother twice monthly in-person visitations and two weeks of summertime visitation. Parents appealed, and Montana Supreme Court justices reversed. Similar to Indiana, Montana allows the grant of nonparent visitation based solely on the best interests of the child. However, the law also presumes a parent will make decisions that are in the best interest of the child, unless proven otherwise. Here, the district court did not even consider parental fitness, which is the correct standard to consider there when weighing whether to make a decision contrary to parental wishes for their children.

These cases are often stem from acrimonious and complicated relationships. Indiana is more open than most to stepparent visitation, under certain circumstances. It’s important for both parents and stepparents to seek experienced legal counsel before entering a courtroom to address these issues.

Indiana Family Law Attorney Burton A. Padove handles divorce and child custody matters throughout northern Indiana, including Gary and Hammond.

Additional Resources: Higgins v. Cumber, Nov. 25, 2014, Montana Supreme Court More Blog Entries: In re J.T. – Grandparent Visitation in Indiana a Long Shot, Sept. 18, 2014, Indiana Child Visitation Lawyer Blog