Strauss v. Tuschman, 2009 UT App 215

Case Summary

David Tuschman (Stepfather) and Tracy Strauss (Mother) married in 1996, and throughout the marriage Stepfather developed a parental, in loco parentis relationship with Mother’s daughter (Child), who was born in 1994 from a prior relationship and had no relationship with her biological father until 2005. The parties separated permanently in May 2004 and divorced in June 2005, with property division, alimony, and visitation bifurcated for later resolution. Stepfather petitioned for parent-time under Utah Code section 30-3-5, and although the district court granted him temporary visitation in July 2005, his contact with Child steadily deteriorated and a 2007 court-ordered reunification attempt failed. Before the bench trial on the remaining issues, Mother successfully argued that, under the Utah Supreme Court’s intervening decision in Jones v. Barlow, Stepfather no longer had standing to seek visitation because Mother had terminated the in loco parentis relationship following the divorce. Stepfather appealed the standing ruling, and the Utah Court of Appeals affirmed.

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Facts

Marriage and Stepfather’s Relationship with Child

Child was born to Mother in 1994 from a previous relationship, and Child had no relationship with, nor knowledge of, her biological father until sometime in early 2005.
Stepfather and Mother married in 1996; the marriage was punctuated by several separations, including periods when the parties lived in different states, though they maintained frequent contact.
Throughout the marriage, including during separations, Stepfather developed a parental relationship with Child and served as her sole father-figure.
Following the parties’ divorce, Child began to establish a relationship with her biological father and apparently no longer desired a relationship with Stepfather.

Separation and Divorce

The parties separated permanently in May 2004, and Mother petitioned for divorce that August.
Mother initially permitted Stepfather visitation with Child, but beginning in early 2005 Stepfather encountered increasing difficulties visiting Child.
In June 2005, the district court granted the parties a divorce and bifurcated the remaining issues of property division, alimony, and visitation for later resolution.

Stepfather’s Petition for Parent-Time

Prior to entry of the divorce decree, Stepfather petitioned for parent-time with Child under Utah Code sections 30-3-5(1) and 30-3-5(5)(a) (Supp. 2004), relying on prior case law interpreting those provisions to grant stepparents standing to seek visitation.
In July 2005, over Mother’s objection, the district court granted Stepfather temporary visitation, finding that he had supported Child, engaged in normal father-daughter activities, and formed a strong bond of love and affection with her.
Stepfather had sporadic court-ordered visitation through the summer of 2005 but had no regular visits with Child after March 2005 and ceased his visitation attempts entirely after August 2005.
A court-ordered reunification session in March 2007 ended abruptly when Child refused to participate and left the session.

Standing Challenge and District Court Ruling

Before the bench trial to resolve property division, alimony, and visitation, Mother filed a motion in limine asserting that Stepfather lacked standing to petition for parent-time.
Relying on the intervening Utah Supreme Court decision in Jones v. Barlow, the district court concluded that Stepfather lacked standing because Mother had terminated his in loco parentis relationship with Child following the divorce.
Stepfather appealed the district court’s standing determination.

Issues of the Case

Appellant Stepfather raises one dispositive issue on appeal regarding his standing to petition for visitation, and Appellee Mother separately requests an award of attorney fees incurred on appeal.

Issue 1: Standing to Petition for Visitation (In Loco Parentis)
Issue 2: Appellee’s Request for Attorney Fees on Appeal

The Utah Court of Appeals affirmed the district court’s determination that Stepfather lacks standing to petition for visitation, and it denied Mother’s request for attorney fees on appeal. Because the standing determination was dispositive, the court did not reach Stepfather’s other issues raised on appeal.

Custody & Parent-Time — Standing
1. Standing to Petition for Visitation (In Loco Parentis)

Claim on Appeal

Stepfather argued that he has standing to petition for visitation under Utah Code section 30-3-5(5)(a), as interpreted in Gribble v. Gribble, because he stood in loco parentis to Child during the marriage.

Holding

— Affirmed. Because Stepfather’s legal relationship with Child ended upon the parties’ divorce, Mother — as Child’s fit legal parent — was free to terminate, and did terminate, Stepfather’s in loco parentis status, extinguishing his standing to petition for visitation.

Statutory Authority

Utah Code § 81-4-502 (Formerly: § 30-3-5) — governs parent-time and visitation rights, including consideration of the best interest of the child in determining visitation rights of parents, grandparents, and other members of the immediate family.

Standard of Review:
- Correctness — whether a party has statutory standing to bring an action is a question of statutory interpretation, reviewed for correctness.
Controlling Cases:
- Gribble v. Gribble, 583 P.2d 64 (Utah 1978) (interpreted a prior version of the parent-time statute as granting a stepparent standing to petition for visitation when the stepparent stood in loco parentis to the child).
- Jones v. Barlow, 2007 UT 20, 154 P.3d 808 (held that in loco parentis status does not independently grant standing to seek visitation once the relationship has ended, and clarified that a fit legal parent may freely terminate that status).
- In re J.W.F. (Schoolcraft), 799 P.2d 710 (Utah 1990) (addressed a stepparent’s standing to petition for custody based on his legal relationship to the child).
- Washington County Water Conservancy Dist. v. Morgan, 2003 UT 58, 82 P.3d 1125 (establishing correctness as the standard of review for questions of statutory standing).
Why It Matters

This decision confirms that, post-Jones v. Barlow, a stepparent’s in loco parentis relationship — and any statutory standing derived from it — can be unilaterally and permanently terminated by the fit legal parent upon divorce, regardless of the depth or duration of the stepparent’s bond with the child. Practitioners representing stepparents must recognize that in loco parentis status is not a freestanding, durable source of visitation rights; it survives only so long as the legal parent allows it to. The opinion also confirms that the 2008 Custody and Visitation for Persons Other Than Parents Act does not apply retroactively, so cases arising in the gap between Jones and the Act’s May 5, 2008 effective date remain governed by this analysis.
Attorney Fees — Appellate Fees
2. Appellee’s Request for Attorney Fees on Appeal

Claim on Appeal

Mother requested an award of attorney fees incurred on appeal.

Holding

— Affirmed (request denied). The court declined to award attorney fees because Mother failed to set forth any legal basis for the request, as required by rule.

Statutory Authority

Utah R. App. P. 24(a)(9) — requires a party seeking appellate attorney fees to explicitly state the request and set forth its legal basis.

Standard of Review:
- Not specified in opinion — the request was denied for failure to satisfy the rule’s procedural requirement rather than resolved under a stated standard of review.
Controlling Cases:
- Advanced Restoration, LLC v. Priskos, 2005 UT App 505, 126 P.3d 786 (declining to award appellate attorney fees where the requesting party failed to cite a rule of procedure or specific statute as the legal basis for the request).
Why It Matters

The ruling is a reminder that a bare request for appellate attorney fees, without citation to a specific rule or statutory basis, will be summarily denied regardless of the requesting party’s success on the merits.

Rules of Evidence

No Utah Rules of Evidence were specifically cited, discussed, or relied upon by the Utah Court of Appeals.

Utah Codes

Utah Code § 81-9-302 (Formerly: § 30-3-5)

Rules of Civil Procedure

No Utah Rules of Civil Procedure were specifically cited, discussed, or relied upon by the Utah Court of Appeals.

Utah Code of Judicial Administration

No Utah Rules of Judicial Administration were specifically cited, discussed, or relied upon by the Utah Court of Appeals.

Utah Rules of Appellate Procedure

Utah R. App. P. 24(a)(9)

Utah Rules of Professional Conduct

No Utah Rules of Professional Conduct were specifically cited, discussed, or relied upon by the Utah Court of Appeals.

Case Cited

Gribble v. Gribble, 583 P.2d 64 (Utah 1978) (interpreted the pre-1978 parent-time statute as granting a stepparent in loco parentis standing to petition for visitation with a spouse’s child).
In re J.W.F. (Schoolcraft), 799 P.2d 710 (Utah 1990) (addressed a stepparent’s standing to petition for custody, framing standing around the person’s legal relationship to the child).
Jones v. Barlow, 2007 UT 20, 154 P.3d 808 (held that in loco parentis status does not independently confer standing to seek visitation once the relationship has ended, and clarified that a fit legal parent may unilaterally terminate that status).
Washington County Water Conservancy Dist. v. Morgan, 2003 UT 58, 82 P.3d 1125 (cited for the correctness standard of review applicable to questions of statutory standing).
Advanced Restoration, LLC v. Priskos, 2005 UT App 505, 126 P.3d 786 (cited for the denial of appellate attorney fees where no legal basis for the request was identified).

Litigation and Appellate Strategy

Reversal Predictor

A district court ruling that treats in loco parentis status as terminable only by the stepparent or the child (the now-corrected Gribble language) rather than by the fit legal parent.
A district court decision that grants a stepparent standing without first determining whether the legal parent has taken action inconsistent with continuing the in loco parentis relationship.
Misapplication of the pre-Jones standard to a case arising after Jones v. Barlow was decided (April 2007).

Mandatory Factor Checklist

Whether the stepparent in fact stood in loco parentis to the child during the marriage.
Whether, and when, the legal parent took action to terminate that in loco parentis relationship (e.g., ending the marriage, restricting contact, removing the child from the relationship).
Whether the legal parent is a fit parent, since only a fit legal parent has the unilateral authority to terminate the in loco parentis status recognized in Jones v. Barlow.
Whether the 2008 Custody and Visitation for Persons Other Than Parents Act applies (only to cases arising on or after its May 5, 2008 effective date).

Signal Cluster (High-Risk Appeal Profile)

A stepparent visitation case is at high risk of losing on standing where: (1) the parties have divorced, (2) the legal parent has restricted or ended the stepparent’s contact with the child following the divorce, (3) the stepparent’s petition or continued pursuit of visitation post-dates the point at which contact broke down, and (4) the case arose in the window between Jones v. Barlow (April 2007) and the Act’s effective date (May 5, 2008), leaving the stepparent without either the old Gribble protection or the Act’s newer framework.

Strategy Insight

Because statutory standing is reviewed for correctness rather than deference, a stepparent challenging an adverse standing ruling should frame the appeal around whether the trial court correctly identified the legal effect of the parties’ divorce and the parent’s subsequent conduct on the in loco parentis relationship — a legal-error framing — rather than attempting to relitigate the factual strength or duration of the stepparent-child bond, which the court has made clear is not the controlling inquiry once the legal parent has terminated the relationship.

Insights

Utah-Only Jurisprudence

The opinion relies exclusively on Utah authority — the Utah Supreme Court’s decisions in Gribble, Schoolcraft, and Jones v. Barlow, together with Utah Code section 30-3-5 and Utah R. App. P. 24 — without reference to out-of-state or federal case law. This reflects the highly state-specific, statutory nature of stepparent standing doctrine in Utah domestic relations practice.

Doctrinal Anchors (Utah Supreme Court)

Gribble v. Gribble, 583 P.2d 64 (Utah 1978) — established that a stepparent who stands in loco parentis to a child has statutory standing to petition for visitation; provided the doctrinal foundation Stepfather relied on in this appeal.
In re J.W.F. (Schoolcraft), 799 P.2d 710 (Utah 1990) — reinforced that standing turns on the person’s legal relationship to the child, such as marriage to the child’s natural parent.
Jones v. Barlow, 2007 UT 20, 154 P.3d 808 — the controlling and most recent authority; corrected Gribble’s misstatement that only the surrogate parent or child could terminate in loco parentis status, and held that a fit legal parent may freely terminate it, which directly disposed of this appeal.

The Most Important Holding

The single most significant holding is that a fit legal parent may unilaterally and permanently terminate a stepparent’s in loco parentis status — and with it, any statutory standing to petition for visitation — simply by ending the marriage and removing the child from the relationship. Once terminated, the depth, duration, or quality of the stepparent’s prior bond with the child is legally irrelevant to standing.

Reversal Based on Legal Error vs. Factual Error

The Court of Appeals affirmed in full; there was no reversal. Had the district court instead ruled that Stepfather retained standing after the divorce despite Jones v. Barlow, that would have constituted legal error — a misapplication of the controlling statutory-interpretation framework — rather than a factual error, since the standing question here turned entirely on the legal effect of undisputed facts (the divorce and Mother’s subsequent conduct), not on disputed factual findings.

Practitioner Takeaways

Trial Lawyers: Before litigating the merits of a stepparent’s visitation petition, confirm standing exists at every stage of the case — standing can be lost between the filing of a petition and trial if the legal parent terminates the in loco parentis relationship in the interim, as occurred here through Mother’s conduct after 2005.
Trial Lawyers: Document consistently, from the outset, any facts suggesting the legal parent has affirmatively worked to preserve (rather than terminate) the stepparent’s relationship with the child, since termination can happen by conduct, not just by court order.
Appellate Lawyers: When a request for appellate attorney fees is made, always affirmatively cite a specific rule or statute as the legal basis under Utah R. App. P. 24(a)(9); failure to do so is fatal regardless of the merits of the underlying appeal.
Family Law Practitioners Generally: Advise stepparent clients that in loco parentis status, standing alone, offers no durable protection once a divorce occurs; clients should consider whether the 2008 Custody and Visitation for Persons Other Than Parents Act (for cases arising after its effective date) provides an alternative statutory path.

Majority Opinion

IN THE UTAH COURT OF APPEALS

—-ooOoo—-

Tracy Strauss, Petitioner and Appellee, v. David Tuschman, Respondent and Appellant.

) ) ) ) ) ) ) ) )

OPINION (For Official Publication) Case No. 20080356-CA F I L E D (August 6, 2009) 2009 UT App 215

—– Third District, Silver Summit Department, 044500158

The Honorable Bruce C. Lubeck

Attorneys: Maria L. Booth, Park City, for Appellant Amy E. Hayes Kennedy, Salt Lake City, for Appellee

—– Before Judges Bench, Orme, and Davis. BENCH, Judge:

¶1 David Tuschman appeals the district court’s determination that he lacks standing to petition for visitation with his former stepdaughter. We affirm.

BACKGROUND

¶2 David Tuschman (Stepfather) and Tracy Strauss (Mother) were married in 1996. Their marriage was punctuated by several separations. Although living apart and even at one time residing in different states, the parties maintained frequent contact. Throughout the marriage, even during times of separation, Stepfather developed a parental relationship with Mother’s daughter (Child).1 1(…continued) marriage, Child has since begun to establish a relationship with her biological father and apparently no longer desires a relationship with Stepfather. 20080356-CA 2

¶3 The parties separated permanently in May 2004, and Mother petitioned for divorce in August of that same year. Mother initially permitted Stepfather visitation with Child. Beginning in early 2005, however, Stepfather encountered increasing difficulties visiting Child. In June 2005, the district court granted the parties a divorce and bifurcated for later resolution matters of property division, alimony, and visitation.

¶4 Prior to entry of the divorce, Stepfather had petitioned for parent-time with Child under Utah Code sections 30-3-5(1) and 30- 3-5(5)(a). See Utah Code Ann. § 30-3-5(1), (5)(a) (Supp. 2004). Previous versions of these statutes have been interpreted to grant stepparents standing to request visitation with their spouse’s children. See Gribble v. Gribble, 583 P.2d 64 (Utah 1978). In July 2005, over Mother’s objection, the district court granted Stepfather temporary visitation with Child, finding that Stepfather had provided support for Child, participated in her life by engaging in normal father-daughter activities, and formed a strong bond of love and affection with Child.

¶5 Although Stepfather attempted to enforce the district court’s temporary visitation order and had sporadic court-ordered visitation with Child through the summer of 2005, he has not had regular visits with Child since March 2005 and ceased his visitation attempts after August 2005. A court-ordered reunification occurred in March 2007, which ended abruptly when Child refused to participate and left the session.

¶6 Prior to the bench trial to resolve the parties’ issues of property division, alimony, and visitation, Mother submitted a motion in limine in which she asserted that Stepfather had no standing to petition the court for parent-time. Based on a recently decided case, Jones v. Barlow, 2007 UT 20, 154 P.3d 808, the district court concluded that Stepfather lacked standing to petition for visitation because, following the divorce, Mother terminated his in loco parentis relationship with Child. Stepfather appeals.

ISSUE AND STANDARD OF REVIEW

¶7 Stepfather claims that he has standing pursuant to Utah Code section 30-3-5(5)(a) to petition for visitation because of his in loco parentis relationship with Child. Whether a party has 20080356-CA 3 “statutory standing” to bring an action presents a question “of statutory interpretation, which we review for correctness.” Washington County Water Conservancy Dist. v. Morgan, 2003 UT 58, ¶ 7, 82 P.3d 1125.

ANALYSIS

¶8 Stepfather asserts that he has standing to petition for visitation under Utah Code section 30-3-5(5)(a), as previously interpreted by Gribble v. Gribble, 583 P.2d 64 (Utah 1978), because he stood in loco parentis to Child. Section 30-3-5(5)(a) states, “In determining parent-time rights of parents and visitation rights of grandparents and other members of the immediate family, the court shall consider the best interest of the child.” Utah Code Ann. § 30-3-5(5)(a) (Supp. 2004). In Gribble, the Utah Supreme Court interpreted a prior version of this statute as granting stepparents standing to petition for visitation with their spouse’s children. See 583 P.2d at 68. The supreme court reasoned that if a stepparent stands “in loco parentis, he [or she] should be considered a parent for purposes of [section] 30-3-5” because a stepparent who has “assumed the status of one in loco parentis to the child . . . [is] in a different position” than other persons unrelated to the child. Id. at 68, 66; see generally id. at 66 (“The term ‘in loco parentis’ means in the place of a parent, and a ‘person in loco parentis’ is one who has assumed the status and obligations of a parent . . . .”). In so reasoning, the supreme court also stated that only a stepparent or a child could terminate the in loco parentis relationship at will. See id. at 67 (“The common law concerning termination of the in loco parentis status is that only the surrogate parent or the child is able to terminate the status at will, and the rights, duties, and obligations continue as long as they choose to continue the relationship.” (emphasis added)).

¶9 Subsequent to Gribble, the Utah Supreme Court decided In re J.W.F. (Schoolcraft), 799 P.2d 710 (Utah 1990), in which it again addressed the issue of a stepparent’s rights with respect to his or her spouse’s children. In Schoolcraft, the supreme court concluded that a stepfather had standing to petition for custody of a child not biologically his own but born to the mother during the mother and stepfather’s marriage. See id. at 716. The Schoolcraft court contemplated several bases for standing but reasoned that standing should be determined in light of a “person’s legal relationship to the child,” such as being “married to the child’s natural . . . parent.” Id. at 715-16 (internal quotation marks omitted). 2In 2008, in response to Jones v. Barlow, 2007 UT 20, 154 P.3d 808, the legislature enacted the Custody and Visitation for Persons Other Than Parents Act (the Act). See Utah Code Ann. §§ 30-5a-101 to -103 (Supp. 2008) (effective May 5, 2008). Because the Act is not retroactive, it is inapplicable to this appeal. Accordingly, the clarification announced in this case is directly applicable only to cases arising after Jones but before the Act’s effective date. 20080356-CA 4

¶10 The Utah Supreme Court recently revisited the issue of whether a person legally unrelated to a child has standing to petition a court for visitation with that child. In Jones v. Barlow, 2007 UT 20, 154 P.3d 808, the supreme court held “that the doctrine of in loco parentis . . . does not independently grant standing to seek visitation after the in loco parentis relationship has ended.” Id. ¶ 2. The supreme court distinguished Jones from Gribble, noting the stepparent’s “standing in [Gribble] arose out of an interpretation of statutory law granting such rights, not from an independent common law source.” Id. Nevertheless, the supreme court corrected a misstatement of law made in Gribble regarding the atwill termination of the in loco parentis relationship, stating, “[T]here is nothing in the authorities we cited in Gribble justifying the conclusion that the in loco parentis status may be terminated by only the surrogate parent or the child.” Id. ¶ 19. The court then clarified that “a fit legal parent[] . . . . may freely terminate the in loco parentis status by removing her child from the relationship, thereby extinguishing all parentlike rights and responsibilities vested in the former surrogate parent.” Id. ¶ 22.

¶11 Here, Stepfather clearly had an in loco parentis relationship with Child while he was married to Mother. However, his legal relationship with Child ended when the parties divorced, at which time Mother could terminate Stepfather’s in loco parentis status at will. Because the legal relationship between the parties ended in divorce and Mother in fact terminated Stepfather’s status, Stepfather lost the standing to petition for visitation with Child.2

¶12 Mother requests attorney fees on appeal. “A party seeking to recover attorney[] fees incurred on appeal shall state the request explicitly and set forth the legal basis for such an award.” Utah R. App. P. 24(a)(9). We decline to grant Mother’s request because she failed to set forth any legal basis for the award. See Advanced Restoration, LLC v. Priskos, 2005 UT App 505, ¶ 36, 126 P.3d 786 (declining to grant a party’s request for attorney fees incurred on appeal because the party failed to cite 3Having concluded that Stepfather lacks standing to petition for visitation with Child, we do not reach his other issues raised on appeal. 20080356-CA 5 either a rule of procedure or a specific statute as the legal basis for its request).

CONCLUSION

¶13 We conclude that the district court correctly determined that Stepfather lacked standing to petition for visitation with Child. While Stepfather may have had statutory standing to petition for visitation with Child prior to the parties’ divorce, that standing was lost when the marriage officially ended and Mother terminated the in loco parentis relationship between Stepfather and Child.3

¶14 We affirm, but we deny Mother’s request for attorney fees on appeal. ______________________________ Russell W. Bench, Judge —–

¶15 WE CONCUR: ______________________________ Gregory K. Orme, Judge ______________________________ James Z. Davis, Judge

1Child was born to Mother in 1994 from a previous relationship. Child had no relationship with her biological father, nor did her biological father have any knowledge of Child’s existence until sometime in early 2005. Although Stepfather was Child’s sole father-figure throughout the (continued…) This opinion is subject to revision before publication in the Pacific Reporter.

Affirmed

The reviewing court determined that the lower court committed no reversible error and upheld the judgment.