Stepparents and Third Party Visitation

Question 1

what are some overall issues with stepparents

Answer 1

no normative set of expectations for step parents. cultural stereotypes are not positive. when do support duties arise? when do rights to custody or visitation arise for stepparents?

Question 2

what are the two ways stepparents can have an obligation of support

Answer 2

• they voluntarily act as in loco parentis (they can terminate if they want since it is voluntary)
• stepparent support statute (Oregon: expenses of family are chargeable upon both spouses – just for creditors, doesn’t give the kid a right of action)

Question 3

what’s the doctrine of equitable estoppel for stepparent support

Answer 3

-representation: child doesn’t know they aren’t their real dad
-reasonable reliance: kid relies upon stepparent
-stepparent intends reasonable reliance
-detriment: kid will be injured if stepparent is allowed to bail

Question 4

what are the issues with equitable estoppel in stepparent context

Answer 4

usually stepparent isn’t representing that they will support forever. reasonable reliance is also hard because we know they aren’t the real parent

Question 5

can equitable estoppel apply to gays

Answer 5

yes

Question 6

what if there’s a same sex couple who takes the partner partner’s kid into their home and acts like its theirs

Answer 6

the court will subject them to child support law if a determination that such a person is not a natural parent will leave the kid with fewer than 2 parents

 A woman who agreed to raise children and held them out as her own is a parent under the UPA with an obligation to support them.

Question 7

what are the three issues to getting rights to custody/ visitation of a step child

Answer 7

-standing
-standard
-constitutional

Question 8

what does Oregon’s third party visitation statute say

Answer 8

any person, including but not limited to a related or nonrelated foster parent, stepparent, grandparent or relative by blood or marriage, who has established emotional ties creating a child-parent relationship or an ongoing personal relationship with a child may petition or file a motion for intervention with the court having jurisdiction over the custody, placement or guardianship of that child

but there’s a presumption that parent is acting in best interest of child

Question 9

what does Oregon’s statute say about grandparents when stepparent is adopting

Answer 9

When a petition has been filed concerning the adoption by a stepparent of a child, a grandparent may file a motion with the court asking the court to award a grandparent the right to regular visitation with the child after the adoption.

The court shall award a grandparent visitation rights only if the court finds by clear and convincing evidence that:
(a)Establishing visitation rights is in the best interests of the child;
(b)A substantial relationship existed prior to the adoption between the child and the grandparent seeking visitation rights; and
(c)Establishing visitation rights does not substantially interfere with the relationship between the child and the adoptive family.

Question 10

what are the elements of a de facto parentage claim

Answer 10

• legal parent’s consent in establishing initial relationship
• de facto parent and child lived in same house
• de facto parent acted as parent and bonded with kid
• regularly performs majority or equal amount of parenting as legal parent

this gets you custody/ visitation if there is consent or detriment

Question 11

what can a de facto parent do

Answer 11

seek custody under best interest of child standard

Question 12

are the policy implications of a de facto parent

Answer 12

• easy to establish
• only works one way –> can establish rights but not olbigations

Question 13

what is a parent by estoppel/ psychological parent

Answer 13

either
- lived with kid for two years with reasonable belief he was dad and then continued to do so after he found he wasn’t OR
- lived with kid since birth or for two years and had agreement with legal parent and its in best interest to recognize OR
- is liable for child support

this gets you legal parenthood

Question 14

what is the parental preference doctrine

Answer 14

As between a natural parent and a third party, the natural parent is presumed to be the best custodian for the child absent a showing that the natural parent is unfit.

different than best interest where non bio has equal shot

Question 15

what is the holding of troxel. what happens if a third party petitions for visitation and the parent opposes

Answer 15

Under the Due Process Clause, a state court may not grant visitation rights to a person, even when doing so would be in a child’s best interest, if those visitation rights are opposed by the child’s parent because doing so interferes with the parent’s fundamental liberty interest in rearing his or her child.

a parent is presumptively fit and their decision gets weight

Question 16

what does Oregon say about psychological parent

Answer 16

can get visitation but there’s a presumption that bio parent acts in kid’s best interest. this can be rebutted with clear and convincing

Question 17

how did Oregon supreme court interpret troxel

Answer 17

when a decision from a fit parent is subject to judicial scrutiny, due process requires that the court accord at least some weight to the parent’s own determination.

but the court can still rule against parent without finding him unfit – just have to give some weight