lawdeeedaw wrote: cnk1220 wrote:
eatthebarforlunch wrote:licensed attorney here> non-bio father would get some form of visitation akin to grandparents. THe facts said the girl called him dad and that the bio father was not really involved. additionally he had been in her life since she was 2-3 and is now presumptive 12-13. It would not be in the best interest of the child to cut all contact since she has a father daughter relationship. Court would ask child if she wants contact and will likely order some form of visitation even if it is just dinner once a month.
I respectfully disagree- 3P visitation defers to a bio parent's determination of what is in the best interests of the child provided bio parent is fit, mom was fit here. Court is not going to override what a bio mom sees is in the best interests of her child re: visitation. That goes to the whole constitutuonal right to privacy for parents to decide issues concerning control of children. I think the child's age issue comes more into play when the father is actually the paternal father and he has DP rights to his child too when the court is making a custody/visitation issue and the child is both biologically theirs.
The fact she called him dad doesn't matter, people call their boyfriend's kids dad all the time, that wouldn't establish a legal relationship either...I don't remember him taking steps to legally adopt her.
I agree that it would be a violation of the parents constitutional rights if it was a custody agreement. Here we are discussing visitation, which does not hinder a natural parents rights to parent or make decisions for the child.
When a nonparent asks a court for visitation rights, they must show that visitation is in the best interests of the child. When determining if visitation rights are appropriate, courts consider a number of factors, including:
The child's relationship with the nonparent;
The relationship between the nonparent and the child's parent or guardian;
The last time the child had contact with the nonparent;
The effect the visitation will have on the relationship between child and legal guardian;
How visitation will impact the time the child has to visit with his or her biological parents or other family members;
Any history of physical, sexual, or emotional abuse or neglect by the nonparent; and
Any other factor that the court thinks is relevant to granting or denying nonparent visitation rights.
As well as taking into consideration the child's wishes, which are not determinative, but considered. You are correct Troxel, did state that visitation statute violated due process, but many states still have visitation statutes on the books that remain intact.
I think what they wanted was the discussion that yes, it violates the due process rights of the parent to award custody to a non-parent, but the totality of the circumstances and the best interest of the child could be considered. Especially when bio father was absent and not financially or emotionally supporting the child. Physiological parents/relatives are just important to a child as biological. Just my two cents.