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California Courts May Grant Stepparent Visitation Rights to a Nonparent

California

,

United States of America

Issue

What factors will the court consider when determining whether to grant visitation to a step-parent?

Conclusion

Cal. Fam. Code § 3101 provides that California courts may grant reasonable visitation to a stepparent if the visitation is determined to be in the best interest of the minor child.

When making a determination about the best interest of the child in a custody decision, California courts must consider: the health, safety, and welfare of the child; any history of abuse by the person seeking custody; the nature and amount of contact the person has with the children; any evidence of habitual or continual use of controlled substances or alcohol by either parent; and, any other factors the court finds relevant. (Cal. Fam. Code § 3011)

Parents have a fundamental due process right to make decisions concerning the custody, care, and nurturing of their child; thus, courts must apply the presumption that a parent's decision regarding stepparent visitation is in the best interest of the child when considering whether to grant stepparent visitation under Cal. Fam. Code § 3101. (In re Marriage of W., Chalmers v. Hirschkop)

In order for a nonparent to receive visitation rights against a parent's wishes, a nonparent must overcome the presumption that a fit parent will act in the best interest of the child by clear and convincing evidence. (Chalmers v. Hirschkop)

Subsection (b)(3)(B) of Cal. Fam. Code § 3047 provides that if a court makes a temporary modification to an existing custody order because a party with sole or joint physical custody or visitation receives temporary duty, deployment, or mobilization orders from the military that will require the party to relocate or otherwise have a material effect on the ability of that party to exercise their custody or visitation rights, the court can grant reasonable visitation rights to a stepparent or other family member if the court: (1) finds there is a preexisting relationship between the family member and the child that has engendered a bond such that visitation is in the best interest of the child; (2) finds that the visitation will facilitate the child's contact with the relocating party; and (3) balances the interest of the child having visitation with the family member against the right of the parents to exercise parental authority. This provision does not increase the authority of stepparents or other family members to seek visitation orders independently.

Law

Cal. Fam. Code § 3101 sets forth when a California court may grant reasonable visitation to a stepparent:

(a) Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child.

(b) If a protective order, as defined in Section 6218, has been directed to a stepparent to whom visitation may be granted pursuant to this section, the court shall consider whether the best interest of the child requires that any visitation by the stepparent be denied.

(c) Visitation rights may not be ordered under this section that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.

(d) As used in this section:

(1) "Birth parent" means "birth parent" as defined in Section 8512.

(2) "Stepparent" means a person who is a party to the marriage that is the subject of the proceeding, with respect to a minor child of the other party to the marriage.

Cal. Fam. Code § 3011 provides that in making a determination about the best interest of the child in a custody decision, California courts shall consider the health, safety, and welfare of the child, any history of abuse by the person seeking custody, the nature and amount of contact the person has with the children, any evidence of habitual or continual use of controlled substances or alcohol by either parent, and any other factors the court finds relevant:

(a) In making a determination of the best interests of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant and consistent with Section 3020, consider all of the following:

(1) The health, safety, and welfare of the child.

(2)

(A) A history of abuse by one parent or any other person seeking custody against any of the following:

(i) A child to whom the parent or person seeking custody is related by blood or affinity or with whom the parent or person seeking custody has had a caretaking relationship, no matter how temporary.

(ii) The other parent.

(iii) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

(B) As a prerequisite to considering allegations of abuse, the court may require independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this paragraph, "abuse against a child" means "child abuse and neglect" as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in clause (ii) or (iii) of subparagraph (A) means "abuse" as defined in Section 6203.

(3) The nature and amount of contact with both parents, except as provided in Section 3046.

(4) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this paragraph, "controlled substances" has the same meaning as defined in the California Uniform Controlled Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).

(5)

(A) When allegations about a parent pursuant to paragraphs (2) or (4) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (c) of Section 6323.

(B) This paragraph does not apply if the parties stipulate in writing or on the record regarding custody or visitation.

(b) Notwithstanding subdivision (a), the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.

In In re Marriage of W., 114 Cal.App.4th 68, 7 Cal.Rptr.3d 461 (Cal. Ct. App. 2003), the California Court of Appeal for the Second District reversed and remanded the trial court's order granting a stepfather visitation after finding that Cal. Fam. Code § 3101 was unconstitutionally applied by the trial court because the trial court did not apply a presumption favoring the joint decision by the natural parents that granting the stepfather visitation was not in the best interest of their child. The Court explained that parents have a fundamental due process right to control the upbringing of their children and that the trial court's application of Cal. Fam. Code § 3101 without this presumption violated this right. Additionally, the Court explained that when both natural parents are in opposition to nonparent visitation, such visitation can only be ordered if the visitation is found to be in the best interest of the child and it is found that denial of the visitation would be detrimental to the child (at 74-75):

The rationale of Troxel and the section 3102 cases apply to a proceeding involving stepparent visitation brought pursuant to section 3101. Troxel is based on the fundamental due process right of parents to control the upbringing of their children and neither makes nor permits any distinction based on the particular status of the nonparent in the child's family. (See Zasueta v. Zasueta, supra, 102 Cal.App.4th at p. 1252, 126 Cal.Rptr.2d 245 [the "'... injection of the state's judgment into the affairs of a fit parent, not the details of the statute authorizing such an intrusion, fueled the Troxel opinion ...'"].) Neither section 3101 nor section 3102 expressly requires the court to presume that a parent's decision is in the best interest of the child, and section 3101, like section 3202, violates a parent's right to raise his or her children free of excessive judicial interference if applied without such a presumption.

Requiring a presumption in favor of parental decisions also furthers the "long-standing inclination of California courts to defer to the jointly expressed wishes of the parents except in the most unusual and extreme cases." (In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1520, 280 Cal.Rptr. 862; see also Lopez v. Martinez (2000) 85 Cal.App.4th 279, 286, 102 Cal.Rptr.2d 71.) Where natural

[7 Cal.Rptr.3d 465]

parents are unified in opposition, nonparent visitation can be ordered only if such visitation is in the best interest of the child and denial of visitation would be detrimental to the child. (Marriage of Gayden, pp. 1517, 1520, 280 Cal.Rptr. 862.)

Here, as in Troxel and the section 3102 cases, section 3101 was unconstitutionally applied because the record fails to show that the trial court applied

[114 Cal.App.4th 75]

a presumption favoring the joint decision by David and Claudine that visiting James was not in the best interest of their child. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084, 40 Cal.Rptr.2d 402, 892 P.2d 1145.) Although the trial court deferred to the parents in a preliminary order temporarily suspending James's visits with C.H., the record shows no such deference or presumption in the June 3, 2003, hearing or in the court's final order. In the absence of anything in the record to show that it accorded special weight to the parents' position, the trial court's ruling may have been based on "nothing more" than a disagreement between the court and the parents concerning C.H.'s best interests. (Troxel, at p. 68, 120 S.Ct. 2054.)

Further, the decisional framework employed by the trial court does not permit us to infer that the court considered the presumption in reaching its decision. The court relied on its express finding that continued visitation with James was in C.H.'s best interest by balancing the interests of parent and stepparent on the apparent assumption that all interests could be accorded equal weight. The court stated that C.H. had a "third parent" and ordered visitation because it could not "figure out how else to split up the time between the three households."

In Chalmers v. Hirschkop, 213 Cal.App.4th 289, 152 Cal.Rptr.3d 361 (Cal. Ct. App. 2013), the California Court of Appeal for the First District held that a stepparent cannot request a modification of a prior court order that denied visitation under subdivision (a) of Cal. Fam. Code § 3101. The plaintiff was the child's stepparent from 2001 to 2006 before the plaintiff and the child's biological mother separated in 2006 (eventually dissolving their domestic partnership in 2008). In 2008 the plaintiff filed a motion for stepparent visitation, which both of the child's natural parents opposed. The motion was denied after the Court found that the child's natural parents had jointly decided what was in the best interest of the child and the plaintiff failed to meet her burden of proof to establish that she should be awarded stepparent visitation. The natural parents still let the plaintiff visit with the minor child in practice, but eventually reduced the amount of time the plaintiff could see the minor child, leading the plaintiff to file a motion for stepparent visitation in 2011 and request a modification of the 2008 order which denied visitation.

The Court explained that Cal. Fam. Code § 3101 gives courts the authority to grant reasonable visitation to a stepparent if visitation is determined to be in the best interest of the child. However, parents have a due process right to make decisions concerning the custody, care, and nurture of the child, and thus courts must apply the presumption that a parent's decision regarding stepparent visitation is in the best interest of the child. The Court explained that in order for a nonparent to receive visitation rights against a parent's wishes, the nonparent must overcome the presumption that a fit parent will act in the best interest of the child by clear and convincing evidence (at 300-303):

Section 3101, subdivision (a) states, “Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child.” Subdivision (c) of section 3101 provides that “[v]isitation rights may not be ordered under this section that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.” Subdivision (d) of section 3101 defines a “ ‘[s]tepparent’ ” as “a person who is a party to the marriage that is the subject of the proceeding, with respect to a minor child of the other party to the marriage.”

The preference for the rights of the parents over those of nonparents in California has been established in custody cases and visitation is “a limited form of custody during the time the visitation rights are being exercised” and “judicially compelled visitation against the wishes of both parents can significantly affect parental authority and the strength of the family unit.”

[213 Cal.App.4th 301]

(In re Marriage of Gayden (1991) 229 Cal.App.3d 1510, 1517, 280 Cal.Rptr. 862.) In Gayden, we considered the trial court's award of visitation to the father's former girlfriend under former Civil Code section 4601, the predecessor to Family Code section 3101. We reversed and determined that the girlfriend had not rebutted the presumption that the wishes of the parents should be followed. (In re Marriage of Gayden, at p. 1521, 280 Cal.Rptr. 862.) The record contained evidence that there was an atmosphere of bitterness and resentment and that visitation was not in the child's best interest. (Ibid.) Thus, we concluded that the record was “manifestly inadequate to overcome the presumption of parental autonomy” and therefore the appellate court could decide that visitation should not be awarded. (Ibid.) We noted that in some circumstances the “needs of the child, which are the most important consideration, may sometimes require that a visitation award be made” to a person who has lived “with the child for a substantial portion of the child's life[,] ... been regularly involved in providing day-to-day care, and ... been permitted by a biological parent to assume a parental role.” (Id. at p. 1522, 280 Cal.Rptr. 862.)

Subsequently, the United States Supreme Court in Troxel v. Granville (2000) 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (Troxel ) held that “the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” (Troxel, at p. 66, 120 S.Ct. 2054.) The court stressed that “ ‘the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ ” (Id. at pp. 65–66, 120 S.Ct. 2054.) A court may not disregard and overturn the decisions of fit custodial parents whenever a third party affected by the decision files a visitation petition. (Id. at pp. 67–68, 120 S.Ct. 2054.) The court in Troxel concluded that a Washington statute that authorized nonparental visitation with a child was unconstitutional as applied to the circumstances before it and based its decision on a “combination of several factors[,]” which included the absence of any allegation or finding that the parent was unfit, the trial court's failure to give any special weight to the parent's determination concerning the children's best interests, and the absence of any allegation that the parent had sought to eliminate visitation altogether. (Troxel, at pp. 68–72, 120 S.Ct. 2054.)

Following Troxel, the California appellate court in In re Marriage of W. (2003) 114 Cal.App.4th 68, 7 Cal.Rptr.3d 461 held that the trial court applied section 3101 in an unconstitutional manner and had violated the parent's substantive due process right to the care, custody, and control of his child when the trial court ignored the presumption that “a parent's decision regarding visitation is in the best interest of the child.” (Marriage of W., at p. 71, 7 Cal.Rptr.3d 461; see also Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1109, 105 Cal.Rptr.2d 139 [“a presumption exists that fit parents act in the best interests of their children”], overruled on other grounds by

[213 Cal.App.4th 302]

Conservatorship of Whitley 2010) 50 Cal.4th 1206, 1225, fn. 4, 117 Cal.Rptr.3d 342, 241 P.3d 840.) The court reasoned: “Requiring a presumption in favor of parental decisions also furthers the ‘long-standing inclination of California courts to defer to the jointly expressed wishes of the parents except in the most unusual and extreme cases.’ ” (Marriage of W., at p. 74, 7 Cal.Rptr.3d 461.) The court stated: “[A]s long as a ‘parent adequately cares for his or her children (i.e., is fit) there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children.’ ” (Id. at p. 73, 7 Cal.Rptr.3d 461, italics added.) The court concluded: “[I]f a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination.” (Troxel, supra, 530 U.S. at p. 70, 120 S.Ct. 2054.)

Appellate courts have recognized that in appropriate circumstances a court may impose a visitation order against a custodial parent's wishes, and that such orders are not per se invalid. (Hoag v. Diedjomahor (2011) 200 Cal.App.4th 1008, 1010, 132 Cal.Rptr.3d 256 (Hoag) [appellate court affirmed trial court's finding that grandmother was entitled to visitation because the presumption that the father was acting in the child's best interest was overcome by the evidence that his reasons for objecting to visitation were not reasonable and were mainly to spite the grandparent]; Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1478–1479, 1485, 1 Cal.Rptr.3d 185 (Fenn) [appellate court concluded that trial court erred in granting father's motion for summary judgment against the grandmother's petition for visitation because ruling was on the sole basis of father's claim that he was a fit parent and the facts in support of the summary judgment did not establish that any court-ordered visitation would necessarily be an unconstitutional infringement on the due process right of the father and his new wife].) A custodial parent's decisions regarding visitation are entitled to presumptive validity and must be accorded “ ‘special weight,’ ” but they are not immune from judicial review. (Fenn, at p. 1479, 1 Cal.Rptr.3d 185.)

The court in Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 132 Cal.Rptr.3d 897 held that the nonparent must overcome the presumption that a fit parent will act in the best interest of the child by “clear and convincing evidence.” (Id. at p. 1180, 132 Cal.Rptr.3d 897 [applying this burden of proof to a grandmother seeking visitation under section 3102].) This standard is necessary, the court reasoned, to protect the parent's constitutional right to raise a child, and “a ‘mere preponderance’ burden as to ‘best interest’ is not sufficient. The ‘clear and convincing’ burden, i.e. evidence ‘ “ ‘ “so clear as to leave no substantial doubt,” ’ ” ' promotes a parent's constitutionally protected ‘first’ choice.” (Rich, at p. 1181, 132 Cal.Rptr.3d 897.)

The Court held that a stepparent cannot, as a matter of law, modify an order denying them visitation under Cal. Fam. Code § 3101. The Court noted that the trial court should have dismissed the plaintiff's motion as a matter of law, without considering whether the plaintiff had met her burden of proof in overcoming the presumption that the parents are the most fit to decide whether visitation with the stepparent is in the child's best interest (at 311-312):

Once the court denies, as the court did here, visitation to a stepparent under section 3101, subdivision (a), the court has determined that there is absolutely no reason for the court to substitute its judgment —or the judgment of the stepparent—for the unified decision of the parents. Here, the court did not set forth a specific visitation schedule that must be followed; thus, there is no visitation schedule to be modified. Furthermore, no statute or case law provides the court with the authority to modify this final order. Here, the request for modification is simply an attempt to challenge the 2008 order.

We hold that the trial court did not abuse its discretion in denying Lisa's motion to modify the 2008 order, as Lisa cannot, as a matter of law, modify an order denying her visitation under section 3101, subdivision (a). Thus, the trial court should have dismissed Lisa's motion as a matter of law without considering whether Lisa had met her burden of proof in overcoming the presumption that the parents are the most fit to decide what is in the child's best interests.8 We nevertheless affirm the trial court's ruling, as Lisa's

[213 Cal.App.4th 312]

motion to modify the 2008 order was properly rejected. (See Montenegro v. Diaz, supra, 26 Cal.4th at p. 255, 109 Cal.Rptr.2d 575, 27 P.3d 289 [appellate court will uphold trial court's ruling “ ‘if it is correct on any basis, regardless of whether such basis was actually invoked’ ”].)

In In re Marriage of Gayden, 229 Cal.App.3d 1510, 280 Cal.Rptr. 862 (Cal. Ct. App. 1991), the California Court of Appeal for the First District reversed the trial court's order granting a stepparent visitation after finding that the record was manifestly inadequate to overcome the presumption of parental autonomy. The Court explained that California courts are inclined to defer to the jointly expressed wishes of parents except in the most unusual and extreme cases. The Court held that in cases where both natural parents oppose nonparent visitation, the nonparent must show, by clear and convincing evidence, that denial of nonparent visitation would be detrimental to the child (at 1520):

As our Supreme Court has pointed out, the Family Law Act was not intended to disturb the longstanding inclination of California courts to defer to the jointly expressed wishes of the parents except in the most unusual and extreme cases. (In re B.G., supra, 11 Cal.3d at p. 698, 114 Cal.Rptr. 444, 523 P.2d 244.) It is established that visitation is ordinarily denied in the face of parental objection. As stated in In re Marriage of Jenkens, supra, 116 Cal.App.3d 767, 172 Cal.Rptr. 331, discretionary rights of visitation for non-parents under section 4601 "must give way to the paramount right to parent if the visitation creates conflicts and problems." (Id., at p. 774, 172 Cal.Rptr. 331.)6

For these reasons, we hold that, except where the Legislature has otherwise specifically provided elsewhere in the Family Law Act, visitation rights regarding a minor child may not be granted to a non-parent under section 4601 over the joint opposition of parents having custody of the child merely upon a finding that such an award will promote the best interests of the child. Where the parents are unified in opposition, visitation must not be allowed unless it is clearly and convincingly shown that denial of visitation would be detrimental to the child.7

Cal. Fam. Code § 3047 provides that a party's active duty military status should be considered by California family courts when making child custody orders. Subdivision (b) states that if a party with sole or joint physical custody or visitation receives temporary duty, deployment, or mobilization orders from the military that will require the party to relocate or otherwise have a material effect on the ability of that party to exercise their custody or visitation rights, any necessary modification of an existing custody order shall be a temporary order made without prejudice and subject to review upon the party's return from military duty, deployment, or mobilization. If a court makes a temporary custody order under these circumstances, the court shall consider any appropriate orders to ensure the party who has received temporary duty, deployment, or mobilization orders can maintain frequent and continuing contact with their child(ren). Subdivision (b)(3)(B) further provides that a court can grant reasonable visitation rights to a stepparent or other family member if the court: (1) finds there is a preexisting relationship between the family member and the child that has engendered a bond such that visitation is in the best interest of the child; (2) finds that the visitation will facilitate the child's contact with the relocating party; and (3) balances the interest of the child having visitation with the family member against the right of the parents to exercise parental authority. This provision does not increase the authority of stepparents or other family members to seek visitation orders independently:

(a) A party's absence, relocation, or failure to comply with custody and visitation orders shall not, by itself, be sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party's activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.

(b)

(1) If a party with sole or joint physical custody or visitation receives temporary duty, deployment, or mobilization orders from the military that require the party to move a substantial distance from the party's residence or otherwise has a material effect on the ability of the party to exercise custody or visitation rights, any necessary modification of the existing custody order shall be deemed a temporary custody order made without prejudice, which shall be subject to review and reconsideration upon the return of the party from military deployment, mobilization, or temporary duty.

(2) If the temporary order is reviewed upon return of the party from military deployment, mobilization, or temporary duty, there shall be a presumption that the custody order shall revert to the order that was in place before the modification, unless the court determines that it is not in the best interest of the child. The court shall not, as part of its review of the temporary order upon the return of the deploying party, order a child custody evaluation under Section 3111 of this code or Section 730 of the Evidence Code, unless the party opposing reversion of the order makes a prima facie showing that reversion is not in the best interest of the child.

(3)

(A) If the court makes a temporary custody order, it shall consider any appropriate orders to ensure that the relocating party can maintain frequent and continuing contact with the child by means that are reasonably available.

(B) Upon a motion by the relocating party, the court may grant reasonable visitation rights to a stepparent, grandparent, or other family member if the court does all of the following:

(i) Finds that there is a preexisting relationship between the family member and the child that has engendered a bond such that visitation is in the best interest of the child.

(ii) Finds that the visitation will facilitate the child's contact with the relocating party.

(iii) Balances the interest of the child in having visitation with the family member against the right of the parents to exercise parental authority.

(C) This paragraph does not increase the authority of the persons described in subparagraph (B) to seek visitation orders independently.

(D) The granting of visitation rights to a nonparent pursuant to subparagraph (B) shall not impact the calculation of child support.

(c) If a party's deployment, mobilization, or temporary duty will have a material effect on the party's ability, or anticipated ability, to appear in person at a regularly scheduled hearing, the court shall do either of the following:

(1) Upon motion of the party, hold an expedited hearing to determine custody and visitation issues prior to the departure of the party.

(2) Upon motion of the party, allow the party to present testimony and evidence and participate in court-ordered child custody mediation by electronic means, including, but not limited to, telephone, video teleconferencing, or the internet, to the extent that this technology is reasonably available to the court and protects the due process rights of all parties.

(d) A relocation by a nondeploying parent during a period of a deployed parent's absence while a temporary modification order for a parenting plan is in effect shall not, by itself, terminate the exclusive and continuing jurisdiction of the court for purposes of later determining custody or parenting time under this chapter.

(e) When a court of this state has issued a custody or visitation order, the absence of a child from this state during the deployment of a parent shall be considered a "temporary absence" for purposes of the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3 (commencing with Section 3400)), and the court shall retain exclusive continuing jurisdiction under Section 3422.

(f) The deployment of a parent shall not be used as a basis to assert inconvenience of the forum under Section 3427.

(g) For purposes of this section, the following terms have the following meanings:

(1) "Deployment" means the temporary transfer of a member of the Armed Forces in active-duty status in support of combat or some other military operation.

(2) "Mobilization" means the transfer of a member of the National Guard or Military Reserve to extended active-duty status, but does not include National Guard or Military Reserve annual training.

(3) "Temporary duty" means the transfer of a servicemember from one military base to a different location, usually another base, for a limited period of time to accomplis

Alexsei publishing date:
2021-12-21 22:26:17.343819
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