Mom can end stepfather's visits

The Utah Court of Appeals has ruled a Utah mother has the right to terminate a stepfather's visitation rights to their daughter after their divorce.

In a ruling with implications for the rights of stepparents to visit children after a divorce, the court of appeals ruled a mother can terminate her ex-husband's legal standing to petition a court for visitation.

David Tuschman petitioned the court for visitation with his stepdaughter after he and her mother Tracy Strauss divorced in 2004. According to Thursday's ruling, the couple's marriage was punctuated with several separations but Tuschman remained the sole father-figure for the girl.

A district judge, over the mother's objection, determined that Tuschman had developed a strong, loving bond with the girl and that visitation was in the child's best interest.

Despite the court's order, the mother allowed only sporadic visits and later argued to the court that due to the Utah Supreme Court's ruling in the visitation case of a same-sex couple, her ex-husband lacked legal standing. The district court agreed with her.

In its ruling Thursday, the court of appeals cited the Utah Supreme Court case of Jones v. Barlow, in which justices concluded that a legally fit parent has the authority to refuse visitation of a non-parent, regardless if a court finds it is in the child's best interest.

In Jones v. Barlow, the lesbian partner of a Utah woman had fought for visitation to the girl she and the mother raised from birth. The high court ruled the partner lacked legal standing under the law. Since then, the Utah Legislature changed the law to eliminate any right of a non-parent to force child visitation against a parent's will. The change not only impacts same-sex couples, but also stepparents, grandparents and others.

"It basically says that stepparents have no rights," said University of Utah law professor Linda Smith, who specializes in studying family law. "It essentially says that the biological parent calls all of the legal shots."

The irony is that divorcing stepparents must deal with issues of alimony and child support, but visitation is not a right. "We in Utah have stepped away substantially from empowering the trial court to make decisions in the child's best interest when that's against what the parent wants," Smith said. She added that whether parents should make final decisions regarding their children over a court is a matter of public debate.

Adoption of the children by a stepparent is an option, but Smith said often the cost of hiring an attorney and paying legal fees puts that protection out of reach for many low-income people. Smith said it is estimated 50 percent of divorces in Utah go unrepresented by attorneys.

Tuschman told the Deseret News he feels his case suffered by the legislature's overreaction to the Barlow case. "I feel the pain of the stepmother in Jones v. Barlow because I think the court never really took her case seriously because the issue of homosexuality is shunned in Utah and not legitimate in the eyes of the law," he said.

Tuschman said he's not out to set legal precedent with his case but just wants to see his daughter. He has yet to decide if he will appeal his case to the Utah Supreme Court.

e-mail: gfattah@desnews.com