Can he/she/they petition for custody and visitation of my child?

Posted on Jan 3, 2022 by Katie Carter


Families are convoluted, messy things in a lot of cases. In this day and age, they’re not all typical moms and dads and biological children, either, so it can be hard to have a sense of where the legal lines are drawn.

The reason I write today, actually, is because of one of those situations. I received a question – a good one, I think – from a woman who had a child using donor sperm. She had a partner soon after conception who is a trans man. The child was born, and the partner played a role in raising the child from her birth until the present – when the parties decided to separate. The mom tells me that her partner is not the biological dad and did not sign on to the birth certificate, but he is telling her that he plans to pursue custodial rights to the child.

Legally, it’s not a complicated question. Emotionally, though, it’s awful for both parties, and obviously also for the child.

Legally, who has rights to a child in a custody and visitation situation?

In a divorce or custody case, we only look at children who are born to or adopted by the parties. If the child isn’t biologically your own, or wasn’t formally adopted, the other “parent” can’t usually ask for parenting time.

Non-parents DO sometimes ask for parenting time – but the standard is much, much higher than the standard for biological or adoptive parents. We see this happen with grandparents, aunts and uncles, and sometimes stepparents – but certainly the partner in this case could petition (in fact, anyone could theoretically petition).

It may be very little comfort to the mother here, because she’ll still have to defend against this petition (which means court appearances and attorney’s fees), but the law is skewed heavily in favor of biological and/or adoptive parents. (Technically, no distinction is made between biological and adoptive parents; I only keep using that terminology to reinforce the specific type of legal relationship required here to be considered a ‘parent’.) In order to receive parenting time, the non parent would have to show that ‘actual harm’ would befall the child if the relationship were not allowed to continue.

As you can probably imagine, actual harm is difficult to show. Actual harm is, as the term suggests, actual, measurable, specific harm; not general, potential, or relative harm. Even if some harm would befall the child if a non parent weren’t allowed to maintain a parental-type relationship with the child, it would have to be harm that the non parent could measure and demonstrate to the court – which is, probably, even more unlikely.

In any litigated case, no matter the issue, evidence, witnesses, and exhibits would need to be introduced to satisfy and convince the court. Ultimately, whether evidence is sufficient and persuasive would be up to the judge to decide – but, suffice it to say, that for a non parent it would absolutely not be easy to make that case.

Emotionally, though, its very difficult not to grow attached to a child who you’ve spent a part of your life raising. As the biological or adoptive mother, you may not want to entertain a ‘claim’ by any other non parent, no matter what role he or she played in your child’s care and upbringing while you were together.

That’s probably especially true if that non parent resorts to expensive, time consuming, stressful litigation in order to force his or her viewpoint on you. In most cases, this is your prerogative as the child’s biological parent.

Can I give a non parent parenting time if I want to?

Maybe you’re feeling generous. Maybe your child’s feelings for your former partner are such that you really feel like you can’t totally deny parenting time. Maybe even knowing that your former partner has virtually no legal rights to your child makes you feel a teensy bit more generous. Whatever the case, you certainly CAN give a non parent parenting time.

You can agree to pretty much anything you want. In fact, I had a case once where we did this exact thing. My client and her soon-to-be ex husband had custody of ex husband’s son from a previous marriage. The child’s biological mother had almost no involvement.

One of the first things she told me was that her son – her oldest son, she specified, so that I wouldn’t confuse him with her biological son – was her first priority. That everything else came second to getting and keeping custody of this kid.

She had no rights, really, but you couldn’t tell her that. And, clearly, dad didn’t want to, either. He signed away his parenting time to my client without much fuss. Apparently, even the biological mother didn’t mind – no one came for my client or tried to petition for any kind of modification to the child’s custody arrangement. (Because, obviously, if it came down to it – biological mom and biological dad could have still raised some issues; it’s not like a separation agreement signed between my client and dad would have held up against biological mom’s concerns – had she been interested in raising them.)

My client took that child, along with her own, and raised him. The last time I spoke with her, he was over 18, and she had raised him from the time he was 9. In fact, we rarely ever even talked about her other children.

My point is only that you can choose to allow what you want to allow. While, in general, I’d recommend against putting anything you don’t absolutely have to put in writing formally in writing (because I don’t like legal obligations that you then have to meet or address later getting in your way if you change your mind), it’s ultimately entirely up to you.

Families look different than they used to. Or maybe they don’t; maybe it’s always been this messy. In any case, there are lots of situations where issues related to custody and visitation come up and where there are non parents involved. Hey, it’s not like only biological or adoptive parents can love children! They just tend to pop out pretty lovable, so it’s hard to blame anyone for growing attached. Still, as the biological or adoptive mother, you have a lot of control over who is around your child, when, and how much – and, if you feel its necessary to invoke your power to keep your former partner out of your child’s life, you’ll have plenty of power to do it.

For more information or to discuss your case one on one with a licensed custody attorney, or to request a copy of our custody book, give our office a call at 757-425-5200.