By now, the troubles in the marriage of Sandra Bullock and Jesse James are well-known: At least five women have claimed affairs with James. Bullock has moved out, and is reportedly ready to file for divorce.
There are obvious parallels here to the Tiger Woods scandal: A claim of sex addiction by the cheating husband, a stint in sex rehab, and more and more women emerging, over time, to claim affairs. But there is an important difference, too.
Elin Nordegren will very likely get primary custody of her children in the event of divorce – for she is their legal mother, has been their primary caretaker, and would likely stack up better than Tiger in a prong-by-prong assessment of relative parental fitness.
In contrast, although Sandra Bullock has played a major caretaking role with respect to James's children – especially his six-year-old daughter Sunny, from his second marriage – Bullock probably will not receive legal custody, for reasons I will explain, though she may be granted visitation.
The Criteria for Legal Parenthood – and How They Apply in the Bullock/James Case
A legal parent is someone who, by virtue of a particular tie to a child, is endowed with constitutionally-protected rights, and subject to potentially onerous obligations. A biological mother is a legal parent unless and until her parental rights are terminated. A biological father is a legal parent if he is married to the child's mother at the time of conception or birth, or if some other criterion for fatherhood is met – such as an adjudication or acknowledgment of paternity, or his openly holding out the child as his own.
Under these basic principles, Sunny has two legal parents: her biological mother Janine Lindemulder, a porn star who was recently released from jail after serving six months for tax evasion, and Jesse James, who was married to Janine when Sunny was born.
James and Lindemulder divorced shortly after Sunny's birth in 2004. In 2005, Jesse married Sandra Bullock. Bullock has, by all accounts, been an integral part of Sunny's life since infancy. Sunny has lived in their home and, since December 2009, James has had sole legal custody of Sunny. In October 2009, after Lindemulder was released from jail, she sought to regain custody of Sunny. But James successfully fought off her attempt; instead, the court awarded full custody to James last December, giving Lindemulder only limited weekly daytime visitation rights.
As Sunny's stepmother, Bullock is neither a legal parent, nor a co-custodian. However, her presence in the home and her relationship with Sunny were highly relevant to the court's decision to allow James to retain full custody. And, as long as she remains married to James, and he retains custody of Sunny, she will have the chance to continue effectively (but not legally) parenting Sunny, just as she had been doing.
But what if she files for divorce? Generally, when a relationship is created by marriage – as in the case of a stepparent or a mother- or brother-in-law – it terminates when the marriage is dissolved. Thus, for instance, a mother-in-law becomes a "legal stranger" to the person her son or daughter has divorced. ("Legal stranger" is a term coined by my colleague John DeWitt Gregory in the family law context.) And a stepmother, for the most part, suffers the same fate with respect to a stepchild, when she divorces the child's legal parent: After the divorce, she is generally a legal stranger to the child. Fortunately, in California – as I explain below – that is not quite the case.
Parents v. Non-Parents: A Battle of Constitutional Importance
The distinction between legal parents and legal strangers is paramount in determining the rights various adults have with respect to the care, custody, and visitation of children. A battle for custody between two legal parents, neither of whom has been declared legally unfit, is straightforwardly about the best interests of the child. The court asks: Given a variety of factors, which parent is best suited to have custody? But a battle between a parent and a non-parent is completely different.
It is virtually impossible for a non-parent to successfully obtain legal custody of a child who has at least one fit parent. Visitation is sometimes possible – but may be hard to come by.
The leading ruling on visitation was handed down in 2000 by the U.S. Supreme Court in Troxel v. Granville. That case concerned a Washington State law that allowed any third party to petition for visitation with a child at any time. It also permitted courts to grant such petitions over parental objection as long as it was in the best interests of the child. (The statute was not limited to any special situations – such as where one parent had been declared unfit or was divorced or widowed.)
In Troxel, a father had committed suicide, and a court had imposed a very expansive visitation schedule for his parents – the children's paternal grandparents – to see their grandchildren. However, the mother objected to the schedule. The Court held that, as applied in this case, the statute was unconstitutional. It cited the substantive due process right of parents to make decisions regarding the care, custody, and control of their children unless they have been declared unfit: The law must presume that fit parents act in the best interests of their children and give "special weight" to their decisions about, among other things, who should be able to spend time with their children.
In the wake of Troxel, many state courts have ruled on the validity of their respective third-party visitation statutes. As I have discussed in previous columns (here and here), many – but not all – such statutes survived review. Those that survived built in a strong preference for deferring to a legal parent's decision about visitation with third parties.
In California, where Bullock and James live, the state's highest court upheld the state's grandparent visitation law, in In re Marriage of Harris, against a Troxel challenge. (I discussed the ruling in a previous column.) Importantly, the statute requires that courts apply a rebuttable presumption that visitation with a third-party over the objection of a legal parent is not in the best interests of the child. It also requires proof of a pre-existing bond between grandparent and grandchild as a prerequisite to an order of visitation.
These two features of the statute seem to honor the constitutional protection for parental rights that was emphasized by the Supreme Court in Troxel. Thus, the California Supreme Court likely made the right call in upholding the statute.
One Good Fact for Bullock: California Allows Stepparent Visitation Rights
Fortunately for Bullock, California law also provides for visitation by a stepparent when he or she divorces a child's legal parent. Under California Family Code §3101, a court may grant "reasonable visitation" to a stepparent during a divorce or annulment proceeding to dissolve the marriage that created the stepparent-stepchild relationship.
This visitation, however, may not be ordered if it would "conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding." This provision must also be applied in any particular case in a constitutional manner. Under Troxel, a parental preference against stepparent visitation must be given "special weight" at a minimum. It would not be enough for a court to determine, merely, that visitation time with Bullock would be in Sunny's best interests.
Under this statute, Bullock could request visitation with Sunny even if she divorces James. But court-ordered visitation time for Bullock would have to come out of James's time with Sunny, rather than out of her mother's visitation time.
Given the apparently close relationship between Bullock and Sunny; the court's seeming prior acknowledgement that Bullock is a good influence on Sunny; and the presence of a variety of destabilizing aspects in Sunny's life, it is not far-fetched to predict that Bullock will be able to get some visitation with Sunny even if she divorces James. (This same set of facts may, ironically, operate to the detriment of James, as he fends off yet another custody challenge by Lindemulder. James's behavior and Bullock's departure could be enough to give her a leg up in this round.)
Yet Bullock's visitation rights will very probably be small compared to what she apparently has had with Sunny, at least before the scandal broke: a de facto parent-child relationship. As she wrote in a letter to the court during the December custody proceeding, "I know the term ‘step-mother' carries many connotations, one of them a ‘glorified babysitter.' My commitment and responsibility to Sunny . . . goes beyond that." As James's spouse, Bullock seems to have seen Sunny every day; visitation might well not even be once a week.
Bullock could go to court, of course, to fight for more visitation time. But if James or Lindemulder objects, she may well lose. Attempts by ex-stepparents to obtain more substantial visitation rights, over the objection of legal parents, have generally been unsuccessful. Moreover, appeals courts are unlikely to overrule family courts on these kinds of heavily fact-based and witness-credibility-based determinations.
Broader relationships between stepparents and stepchildren after a divorce tend to be the product of mutual agreement, rather than court order. So ironically, attempting civil or even friendly relationships with James and Lindemulder might be Bullock's best chance to maximize her visitation with Sunny.
Court Precedent that May Be Relevant to Bullock's Bid for Visitation Rights
As noted above, Bullock and James live in California. Yet rulings in other states on similar issues may be instructive to the California court that considers any request she makes for visitation, or other rights, regarding Sunny.
In a recent ruling, Corbin v. Reimen, the Washington Supreme Court ruled against an ex-stepfather who was trying to maintain strong parental ties with his former stepdaughter, "M.F." Washington's statutory provisions are similar to California's, and the case illustrates how little protection is built into the law for stepparent-stepchild relationships.
In 1993, Patricia Reimen gave birth to M.F., while married to Edward Frazier. Shortly thereafter, they separated. When M.F. was 14 months old, Patricia became involved with John Corbin. In 1995, when Reimen and Frazier's divorce became final, Patricia was granted primary residential custody of M.F. The same year, Patricia and John married, and had two sons – and John became M.F.'s stepparent.
But in 2002, Patricia and John divorced. Patricia and John's agreed-upon "parenting plan" gave John custody over the couple's two sons 45 percent of the time. Most of that time, M.F. accompanied her brothers, but there was no formal parenting plan regarding M.F.
In 2005, John moved to modify the boys' parenting plan. Around the same time, M.F. stopped visiting John along with the boys. (The parties disagree about why.) In 2006, John petitioned to be named M.F.'s "de facto parent" and awarded some "residential time."
In other words, John – as a former stepfather – sought partial custody of M.F., despite the fact that neither of her parents had been deemed legally unfit. Although Washington, like California, has a nonparent visitation statute on the books, it has been rendered a dead letter by a series of cases questioning its constitutionality. A former stepparent's only recourse under current Washington law is to seek nonparental custody, which requires a showing of parental unfitness or detriment to the child.
The concept of "de facto" parentage recognizes that sometimes adults who are not legal parents nonetheless serve import parental functions for children. Several states allow courts to recognize – typically in limited circumstances – the parental rights of such an adult, deeming the adult a "de facto parent," and granting the adult more rights than a stepparent would enjoy. The Washington Supreme Court had already recognized the de facto parentage doctrine in a 2005 case involving a dispute between a biological mother and her lesbian; they agreed to become parents together, and one of them was inseminated and gave birth to a child. Under Washington law, only the biological mother had legal parent status, but the court recognized her partner as a de facto parent.
In contrast, the Washington Supreme Court rejected John's argument that he should be recognized as M.F.'s de facto parent – ruling that "M.F.'s legal parents and their respective roles were already established under our statutory scheme," and that John had entered the relationship "as a stepparent, a third party to M.F.'s two existing parents."
The court reasoned that legal recognition of John's de facto parentage would, in essence, enlarge his rights and potentially infringe on the parental rights of M.F's legal parents. As a stepparent, the court concluded, Corbin could only obtain custody (as opposed to simply visitation) over a legal parent's objection upon a showing of either parental unfitness or actual detriment to the child – very high standards. (James's apparent adultery and sex addiction are unlikely to render him unfit as a legal matter.)
A 1988 ruling by an appellate court in California, in Lewis v. Goetz, reached the same result when considering a stepparent's request for de facto parent status – holding that the stepparent had only the visitation rights set forth by statute.
The bottom line: Sandra Bullock has an uphill battle if would like to divorce James and maintain a parental-type relationship with Sunny. While court-ordered visitation is possible – and on the facts, I think, even probable – Bullock may not legally be able to regain the kind of relationship she has had with Sunny without Lindemulder's and/or James's consent.