James W. v. Claudine W.

David H. appeals an order allowing visitation between his son C.H. and C.H.’s stepfather, James W. David challenges the constitutionality *71 of Family Code section 3101 1 which gives the trial court discretion to order stepparent visitation. We hold that the application of section 3101 in this case violated David’s substantive due process right to the care, custody and control of his child by failing to apply a presumption that a parent’s decision regarding visitation is in the best interest of the child. (Troxel v. Granville (2000) 530 U.S. 57 [ 147 L.Ed.2d 49 , 120 S.Ct. 2054 ] (Troxel).)

[[/]] *

We reverse and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

C.H. was born in 1992 and is the son of appellant David and respondent Claudine W, who were never married. Shortly after C.H.’s birth, David sought and received judicial recognition that he is C.H.’s father and has had court-ordered visitation ever since.

In 1995, James married Claudine and became stepfather to C.H. In 2000, James filed a petition for dissolution of his marriage to Claudine and sought an order for visitation with C.H. James alleges that he has been actively involved in C.H.’s life…