This article offers a method of providing custody and visitation rights to individuals formerly involved in nontraditional relationships who function as children's parents but who lack the legal status of parent. The article considers a broad range of nontraditional families, including stepparents, same-sex partners, and unmarried heterosexuals. The article begins with a summary of California statutory law. The author examines how "parent" is defined and the limitations imposed on those falling outside that definition when they seek to assert rights to child custody and visitation. Next, the article focuses on three types of nontraditional relationships to illustrate how California courts have applied the statutory law and how that application limits nonlegal parents' ability to gain standing to assert claims for custody and visitation and limits courts' subject matter jurisdiction to consider such claims. In cases where nonlegal parents overcome the standing and jurisdictional issues and make it into court, the article shows how the law works to summarily deny their claims, without considering any functional parent-child relationship that may have existed. Next, the article examines existing legal theories under which nonlegal parents attempt to use their functional relationships to establish parental rights. The article also explores the failure of these theories to provide for functional parents or to adequately protect the rights of legally recognized parents from outside parties. The article then considers three innovative approaches to resolving child custody and visitation disputes arising out of nontraditional relationships which do establish rights for functional parents. In conclusion, the author advises the California Legislature to redefine "legal parent" to include functional parents. The author recommends specific criteria for determining when a functional parent-child relationship exists, taking into account the extent of the relationship itself, the child's perceptions of the relationship and the legal parent's intent in creating the relationship. This approach allows functional parents to seek custody and visitation according to the same standards as other legal parents, while protecting legal parents from attempts by outside parties to establish parental rights.
Kristine L. Burks,
Redefining Parenthood: Child Custody and Visitation When Nontraditional Families Dissolve, 24 Golden Gate U. L. Rev.