In Chalmers v. Hirschkop, the California Court of Appeals considered a child custody issue in the case of an unmarried lesbian couple who were in a domestic partnership. Tiela Chalmers and Michael F are the biological parents of Eliana F., born in 2001 Tiela and Michael decided to have the baby together via artificial insemination and entered into a co-parenting contract on April 2, 2000, in which they agreed to joint legal and physical custody of the baby.
After Tiela and Michael had agreed to have a baby together, Tiela and Lisa Hirschkop became romantically involved, registering as domestic partners in 2003 after Eliana was born. Lisa step-parented Eliana from 2001-2006. The couple separated in 2006 and Tiela filed for dissolution of the domestic partnership.
In 2008, after Tiela and Lisa had broken up, Lisa filed a request as a stepparent to increase her limited visitation with Eliana up to 15 hours a week. Her attorney argued Lisa was a stepparent. She also argued Eliana’s best interests dictated she spend more time with Lisa. Tiela filed an opposition to the request and Michael supported the opposition. The court denied Lisa’s petition (the 2008 order), finding she didn’t meet the burden of proof required to override Tiana and Michael’s joint decision regarding the limited visitation. The trial court also said that Lisa would have to show that the present schedule was a detriment to Eliana to override the parent’s wishes. It also held that Lisa was a stepparent, not a legal parent and the court could not award custody rights to a stepparent.
In 2009, Tiana and Michael limited Lisa’s access to Eliana even more, because they said Eliana came home from visits with Lisa angry and confused about the schedule. They also said that Lisa could have a session with the psychologist who was concerned about Eliana’s wellbeing. Lisa refused. In 2011, Lisa asked the court to modify the 2008 order and have Eliana (then 10 years old) testify. She argued she only had 16 hours a year with her and that Eliana wanted to know why she saw Lisa so much less than Tiela. Tiela opposed, testifying in a written declaration that Eliana’s mood improved as soon as she started seeing Lisa less.
The trial court denied both of Lisa’s requests. It explained it didn’t find it appropriate to evaluate the child when she was only ten years old. The trial court’s order explained that it had to give deference to the wishes of the biological parents.
Lisa appealed, arguing among other things, that the trial court misapplied the law, was required to conduct an evidentiary hearing, and abused its discretion in terminating jurisdiction over custody matters.
The appellate court was asked to answer the question: “…can an order denying a stepparent visitation rights be modified?”
The appellate court outlined the rules regarding visitation requests by stepparents, emphasizing the preference given to parental rights over those of nonparents. There are circumstances where courts have imposed a visitation order against a custodial parent’s wishes, but as the court explained, the “nonparent must overcome the presumption that a fit parent will act in the best interest of the child by “clear and convincing evidence.”
The appellate court viewed Lisa’s arguments not as an appeal of the modification decision, but as a challenge to the 2008 order asking for visitation, which she never appealed. It was, as the trial court ruled, “the parents’ prerogative to limit the access.”
The appellate court also stated it neither statute nor case law allowed the court to modify a final visitation order.
When a child custody and visitation dispute like this one arise during a divorce, consult the experienced attorneys at Ginzburg & Bronshteyn. Our knowledgeable Los Angeles family law attorneys are here to help clients throughout Southern California navigate the stressful path of family law matters. Please contact us online or call us at (310) 914-3222.