Perry

The issue in this case is whether in a marital dissolution action the superior court has jurisdiction to award visitation privileges to a spouse who is not a parent (natural or adoptive) of a minor child of the other spouse. We hold that it does not because Civil Code section 4351 expressly limits the jurisdiction of the superior court in a marital dissolution action to minors who are “children of the marriage.” 1 We arrive at this conclusion notwithstanding the provisions of Civil Code section 4601 which states in pertinent part: “In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the *482 child.” 2 We construe the latter section to permit the court to award reasonable visitation rights to a nonparent only if in the proceeding before it the court otherwise has jurisdiction over the issue of custody.

Facts

Frederick Lee Perry (Husband) and Roxanna Marie Perry (Wife) were married on March 31, 1973. Approximately six years later, on May 7, 1979, Wife filed a petition for dissolution of the marriage. The interlocutory decree of dissolution was entered on June 8, 1979, and the final decree of…

I concur but believe an additional comment is in order.

If husband had asserted in his response to the petition in the dissolution action, that there were children of the marriage because he stood in loco parentis with regard to Lonnie, the superior court might have jurisdiction over the subject matter. In other words, if husband had raised the issue and had been found by the superior court to be in loco parentis with regard to Lonnie, one could conclude that Lonnie was a “child of the marriage” within Civil Code section 4351 (see Gribble v. Gribble (Utah 1978) 583 P.2d 64 ; 1 Spells v. Spells (1977) 250 Pa.Super. 168 [ 378 A.2d 879 ]; cf. In re Marriage of Valle (1975) 53 Cal.App.3d 837 [ 126 Cal.Rptr. 38 ]; on the general subject of steparents see 59 Am.Jur.2d, Parent and Child, § 91, pp. 187-190; see also Annot. (1964) 98 A.L.R.2d 325 , on visitation rights of persons other than parents).

However, husband did not allege he stands in loco parentis with regard to Lonnie and the issue of whether a finding in his favor on that question would make Lonnie a child of the marriage under Civil Code section 4351 for the purposes of visitation has not been briefed or argued. Therefore…

Richard M. Long for Real Party in Interest.

OPINION

BROWN (G.A.), P.J.

(1) The issue in this case is whether in a marital dissolution action the superior court has jurisdiction to award visitation privileges to a spouse who is not a parent (natural or adoptive) of a minor child of the other spouse. We hold that it does not because Civil Code section 4351 expressly limits the jurisdiction of the superior court in a marital dissolution action to minors who are "children of the marriage." [1] We arrive at this conclusion notwithstanding the provisions of Civil Code section 4601 which states in pertinent part: "In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child." [2] We construe the latter section to permit the court to award reasonable visitation rights to a nonparent only if in the proceeding before it the court otherwise has jurisdiction over the issue of custody.

Frederick Lee Perry (Husband) and Roxanna Marie Perry (Wife) were married on March 31, 1973. Approximately six years later, on May 7, 1979, Wife filed a petition for dissolution of the marriage. The interlocutory decree of…