Stepparenting After Divorce: Stepparents’ Legal Position
                   Regarding Custody, Access, and Support*
judicial tendencies vis-a-vis stepparents who seek custody of or
                                             `           ...
The ‘‘unsuitable’’ interpretation was invoked in the case of       however, some courts have allowed stepparents to petiti...
to support [stepchildren] during the marriage and so long there-       do so, which can be upheld through either an estopp...
tations are introduced as well. For example, the dichotomous            tant one that judges and legislators would do well...
Practical Implications                               be especially influential in the areas of law and policy surround-
Ganong, L. H., & Coleman, M. M. (1987). Stepchildren’s perceptions of their             Spells v. Spells, 378 A.2d 879 (Pa...
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  1. 1. Stepparenting After Divorce: Stepparents’ Legal Position Regarding Custody, Access, and Support* Jason D. Hans** Both the research and the clinical literature indicate that over time stepparents and stepchildren may develop emotional attachments similar to their biological counterparts. Nevertheless, stepparents are legal strangers to stepchildren—the relationship is not protected by law during marriage or following marital dissolution. There are some legal avenues by which stepparents may obtain parenting rights or be required to provide financial support for a stepchild following divorce. The legal process encountered by stepparents regarding custody, access, and child support are elucidated here, in addition to a discussion of policy recommendations and practical implications. D iverse family arrangements challenged the plasticity of lationships (Fine & Fine, 1992; Mason, Fine, & Carnochan, Special Collection family law throughout the latter half of the 20th century 2001), the burgeoning prevalence and complexity of stepfamilies (Gregory, 1999; Mason, Fine, & Carnochan, 2001). has created an upsurge in the amount of attention they receive Courts were increasingly asked to make decisions on issues for from legislators and judges (Morgan, 1996b). As shown in the which there was previously little, if any, legislative guidance. Appendix, most states now have legislation that gives third par- For example, cases proliferated involving various family struc- ties (and often stepparents specifically) the legal standing nec- tures (e.g., single-parent, divorced, same-sex), relationships (e.g., essary to request custody or access (Mayoue, 1998; Morgan, step, surrogate, adoptive, cohabiting), and mobility (e.g., custo- 1996b). Although a legal avenue has been created for steppar- dial parent relocation, international access). Although the issues ents, and the process of attaining a decision is for the most part were diverse, many cases revolved around the parent-child dyad, clear, the criteria courts use to make decisions at each stage re- such as stepparents who sought custody of or access to their main ambiguous and largely left to each judge’s discretion (Dur- stepchildren following divorce. Stepparents face considerable an-Aydintug & Ihinger-Tallman, 1995). obstacles when they seek parental rights following divorce be- Herein lies the challenge for judges, stepparents, and divorce cause they must overcome biological parents’ rights, which have mediators: How and to what extent can (or should) rights be long been protected by the constitution (e.g., Pierce v. Society afforded to stepparents when a close and loving bond has formed of Sisters, 1925). between them and a child to whom they have no legal relation? Research has demonstrated that nonbiological caregivers can This question comes to the forefront when remarriages end in form relationships with children similar to those of biological divorce and stepparents desire an ongoing relationship with their parent-child dyads, which appears to validate the stepparents’ stepchildren. The difficulty is in honoring the psychological at- requests. For example, as a caregiver and child spend more time tachment that may exist between a stepparent and stepchild while with one another, a secure attachment relationship more likely not denying the biological parents’ constitutional right to the develops (Goossens & Van Ijzendoorn, 1990; Howes & Smith, child. Divorce mediators often approach this quandary by em- 1995). Similarly, it has been argued that level of attachment phasizing to parents that the ongoing involvement of a caring should be one of the primary determinants in selecting perma- stepparent, an additional source of support and continuity in their nent homes for foster children (Hegar, 1993). Although close children’s lives, is beneficial for their children. Ultimately, step- emotional bonds are expected in parent-child relationships (es- parents have few options if the biological parents do not consent pecially in the mother-child dyad), they are not limited to this to the stepparents’ continued involvement. A similar conundrum dyad, nor do they depend upon biological or family ties (Boos- was addressed by the U.S. Supreme Court as it relates to grand- Hersberger, 1998). In fact, children can and do form close emo- parent access in the state of Washington, and with caution the tional bonds in multiple relationships (Goossens & Van Ijzen- majority favored parents’ right to make decisions regarding the doorn; Kromelow, Harding, & Touris, 1990; Suess, Grossman, rearing of their children provided the children are adequately & Sroufe, 1992), including relationships with stepparents (Fine cared for (Troxel v. Granville, 2000). Nevertheless, stepparents & Fine, 1992; Ganong & Coleman, 1987; Hobart, 1987). More- and children who coreside often develop genuine parent-child- over, Bray and Kelly (1998) found that over time stepfamily like relationships. Thus, a legitimate argument might be raised members begin to think of themselves more as a nuclear family that a stepparent can be a ‘‘parent,’’ and when circumstances (i.e., a family consisting of a married couple and their biological dictate should be granted the same legal protections given to children) than as a stepfamily. biological and adoptive parents. Although lawmakers have been slow to recognize nontra- Neither an overly permissive nor a rigidly restrictive ap- ditional family relationships (Morgan, 1996a), including stepre- proach to determining privileges and obligations seems appro- priate for custody, access, and support cases with stepparents. The potential variability in the steprelationship from one case to *I would like to thank Marilyn Coleman for her insightful feedback on earlier drafts of this article. another necessitates that courts be granted enough latitude to consider the unique facts of each case while providing some **Department of Human Development and Family Studies, University of Missouri– Columbia, 314 Gentry Hall, Columbia, MO 65211 ( standard upon which to base a decision. The ambiguity that sur- rounds this difficult issue may heighten both the confusion and Key Words: child support, custody, family law, stepfamilies, visitation. anxiety of litigants involved in these cases, as well as create a false sense of hope (or hopelessness) among them. The purpose (Family Relations, 2002, 51, 301–307) of the first part of this article is to explain legal processes and 2002, Vol. 51, No. 4 301
  2. 2. judicial tendencies vis-a-vis stepparents who seek custody of or ` subsist’’ (Mason & Mauldon, 1996, p. 18). Typically, this status access to stepchildren following marital dissolution. In addition, is reserved for situations where the noncustodial parent is not a stepparents’ obligations to provide child support for stepchildren part of the child’s life (Boos-Herberger, 1998; Levine, 1996; see following marital dissolution is examined. Next, policy recom- also Mahoney, 1994), such as when the noncustodial parent has mendations related to stepparenting following divorce are de- no contact with the child or is deceased. Hence, the stepparent scribed and critiqued. Finally, practical implications are offered literally ‘‘stands in the place of’’ another parent. Nevertheless, for family professionals in the roles of marriage counselor, di- there is no established procedure among the courts for determin- vorce mediator, and policy advocate. ing whether a stepparent-child relationship should be granted in loco parentis status—the decision is ultimately left to the judge’s Stepparent Custody discretion. Thus, it is difficult to predict how courts will interpret the child of the marriage phrase. An adult with custody of a child is responsible for the child’s ‘‘care, control, and maintenance’’ (Garner, 2000). Mayoue Parental Preference (1998) described a 3-step process that a stepparent must com- Some courts have held that the welfare of a child is para- plete to gain postdivorce custody of a stepchild. The first step is Special Collection mount to the biological and adoptive rights of parents (Buser, to establish standing (i.e., the right to be heard before a court of 1987). Over 20 years ago, a New York court referred to the law) to petition for custody, which varies from state to state. modern principle that ‘‘a child is a person, not a subperson over Then, the stepparent must overcome the legal preference given whom the parent has an absolute possessory interest’’ (Bennett to biological and adoptive parents. Finally, evidence must be v. Jeffreys, 1976, p. 278), essentially meaning that a child’s right presented that demonstrates the child’s best interest will be to be protected by the law is independent of, and may even served by awarding the stepparent custody. Each of these steps supercede, parental rights (see Prince v. Massachusetts, 1944). are discussed below. Nevertheless, the law as a whole has been slow to abandon par- ent-focused legislation in favor of child-centered approaches in Standing to Petition custody decisions. Most courts continue to emphasize biological Biological and adoptive parents have a constitutional right or legal ties by presuming that a biological or adoptive parent is to direct the upbringing of their children (Ginsberg v. New York, the most suited to fulfill a child’s needs (Levine, 1996; Morgan, 1968; Prince v. Massachusetts, 1944; Stanley v. Illinois, 1972; 1996b). In fact, the Montana Supreme Court overturned a cus- Wisconsin v. Yoder, 1972), but stepparents also may be afforded tody decision in favor of a stepfather because the lower court rights to custody based on state statutes. As shown in the Ap- did not have the ‘‘authority to deprive a natural [sic] parent of pendix, stepparents have the right to file for custody of step- his or her constitutionally protected rights absent a finding of children following divorce in approximately 60% of the 50 states abuse and neglect or dependency’’ (In re A.R.A., 1996, p. 392). (Mayoue, 1998). According to Boos-Hersberger (1998), the ob- Traditionally courts have been unwilling to intrude upon parental stacles encountered in the other states revolve around: (a) the rights without compelling reason such as potential harm to the Uniform Marriage and Divorce Act (UMDA, 1998) and (b) leg- child or unfit parents (Developments in the Law, 1980). islation that only permits courts to determine custody for ‘‘chil- Because most courts give preference to a biological parent, dren of the marriage.’’ an extraordinary circumstance, such as the biological or adoptive Eight states have adopted the UMDA third-party provision parent being unfit or not wanting custody, is generally a prereq- that only grants standing to stepparents when the child is not in uisite to consideration of stepparent custody (Mayoue, 1998). the physical custody of a biological or legal parent (UMDA § However, because the ‘‘unfit’’ standard is so difficult to prove 401, d[2], 1998). This approach emphasizes parental rights at the (Morgan, 1996b), it has been loosely interpreted (e.g., unsuit- expense of children’s best interest (Schlam, 2000), and in doing able, detrimental) in some divorce cases. The willingness of so prevents most stepparents in these eight states from gaining courts to lax the standards in divorce proceedings may be attrib- standing. utable to the fact that loss of custody does not totally terminate The second hindrance concerns the wording of dissolution a parent’s rights, as is the case when a state removes children preceding statutes. Whether shortsighted or intentional, many from a home because of ‘‘unfitness’’ (Mayoue; Stanley D. v. states limit the custody jurisdiction of courts to children of (i.e., Deborah D., 1983). resulting from) the marriage being dissolved. Although a major- In a case that exemplifies the ‘‘detrimental’’ interpretation ity of states have yet to apply these ‘‘child of the marriage’’ of parental unfitness (In re Dunn, 1992), the court awarded per- statutes to cases involving stepparents (Boos-Hersberger, 1998), manent custody to the stepmother after the custodial father died. the potential for courts to dismiss their requests based on a lack The mother appealed, arguing that the law favors biological and of jurisdiction is readily apparent. A New York court (Janet adoptive parents over third parties unless the biological or adop- S.M.M. v. Commissioner of Social Services, 1993) did just that tive parent is shown to be unsuitable. The appeals court upheld when it determined that similar terminology (i.e., ‘‘child of the the decision of the lower court, stating that ‘‘if the unsuitability parties’’) in a New York statute was intended to mean a biolog- is based on detriment to the child, courts must measure suit- ical relationship and, therefore, did not grant standing to the ability in terms of the harmful effect on the child, not in terms stepparent. However, an Alaska court (Carter v. Brodrick, 1982) of society’s judgment of the parent’’ (p. 83). In this case, a pre- held that a stepchild is ‘‘of the marriage,’’ if the stepparent is ponderance of evidence existed indicating that awarding custody found to be in loco parentis, or intentionally acting with the to the mother would be detrimental to the children. This was status and obligations of a parent (Gribble v. Gribble, 1978). based primarily on evidence that the children accepted their step- A stepparent (or other third party) with an in loco parentis mother, not their biological mother, as their mother figure and relationship ‘‘stands in the place of a natural [sic] parent, and that relocating the children would have ‘‘devastating’’ and ‘‘det- the reciprocal rights, duties, and obligations of parent and child rimental’’ effects on their emotional stability. 302 Family Relations
  3. 3. The ‘‘unsuitable’’ interpretation was invoked in the case of however, some courts have allowed stepparents to petition for a child with special needs (Marriage of Allen, 1981). Custody access (Morgan, 1996b). Where stepparent access is considered, of the child, deaf from birth, was awarded to the stepmother over in general, courts determine whether to grant access privileges the biological father at the time of their divorce. Although the according to the best interests of the child standard (Goldstein, father was not found to be unfit, a fundamental difference existed 1995; Mayoue), with parental rights playing a far lesser role than between him and the stepmother—his attitude toward the child’s in custody cases. special developmental needs, although concerned, was charac- The in loco parentis doctrine influences the outcome of ac- terized by the court as essentially ‘‘apathetic and fatalistic.’’ On cess cases in two ways. As with custody, several states preempt the other hand, the stepmother demonstrated an optimistic belief a best interests ruling until standing is established based on the in the child’s potential through her ‘‘dedication, devotion and existence of an in loco parentis relationship (Goldstein, 1995). determination to provide’’ (p. 19) the child with the special train- Others use the in loco parentis doctrine as grounds to grant step- ing needed to prosper. parents access where not expressly permitted by statutory law Although these cases demonstrate a child-focused approach, (Gribble v. Gribble, 1978; Spells v. Spells, 1977). some scholars have cautioned against the undervaluing of pa- Despite the widespread use and adaptation of in loco par- rental rights. For example, Morgan (1996b) has asserted that it entis, its use in stepparent access cases has not gone without Special Collection is inappropriate for a court to believe that losing custody of a criticism. Goldstein (1995) argued that by requiring an in loco child is not as serious as a termination of parental rights. Further, parentis relationship before access will be considered, the court’s she challenged its constitutional appropriateness on the basis of initial focus is diverted from the well-being of the child. More- a parent’s right ‘‘to the care, custody, and companionship of over, it was suggested that granting access requests based solely one’s child’’ (p. 193). Thus, parental preference can be a difficult on the child’s best interest is more beneficial for the child. Gold- issue for the courts with no readily available solutions. stein held this view because it would allow courts to ‘‘completely examine the child’s interests and respond accordingly, regardless Child’s Best Interests Standard of the existence of a specific type of relationship between the If a stepparent has standing to petition the court and suc- stepparent and stepchild’’ (p. 165). This reasoning has been ech- cessfully overcomes the parental preference, then the court will oed by others as well (Fine, 1997; Fine & Fine, 1992; Mahoney, apply the best interests of the child standard to determine who 1994). Further, this argument appears to be supported by empir- should be the child’s primary custodian (Levine, 1996). There is ical research based on the nondiscriminate nature of close emo- no universally accepted understanding of how to determine what tional bonds described earlier. is in the best interests of a child; the decision is left up to the statutes and courts of each state. Thus, what is in the best inter- Support Obligations ests of a child is largely a matter of opinion and each judge has In general, a stepparent is not obligated to provide child discretionary latitude to interpret the standard as he or she deems support (i.e., legally imposed financial maintenance) for a step- appropriate (Gregory, 1998). The indeterminacy and unpredict- child after the marriage to the child’s legal parent ends. However, ability of the best interests of the child standard has fueled wide- there are three situations that may beget a stepparent’s obligation spread criticism (Principles, 2001; Schneider, 1991). For exam- to support a stepchild following divorce: (a) statutory obliga- ple, Mnookin (1975) questioned whether greater weight should tions; (b) an in loco parentis relationship between the stepparent be given to a child’s short-term or long-term well-being. Among and stepchild; and (c) a promise to support the stepchild (May- the many other charges against the best interests standard are oue, 1998; Richards, 1994). that the ambiguity provides incentive to engage in litigation (Burt, 1983; Elster, 1987) and that unchecked judicial discretion Statutory Law leaves too much room for decisions to be influenced by judges’ personal preferences and prejudices (Schneider). Most jurisdic- Seventeen states have ratified a wide assortment of laws that tions have responded to the criticism by specifying criteria for hold stepparents responsible for the support of stepchildren dur- courts to use when making a best interest determination (Prin- ing marriage (see Appendix). They range from Hawaii’s situa- ciples). As an example of the criteria commonly cited, the tion-specific support statute: UMDA includes the wishes of the child; the wishes of the par- A stepparent who acts in loco parentis is bound to provide, ents; the quality of the child’s relationship with each family maintain, and support the stepparent’s stepchild during the member; the child’s adjustment to home, school, and community; residence of the child with the stepparent if the legal parents and the mental and physical health of the individuals involved desert the child or are unable to support the child, thereby (UMDA § 402, 1998). reducing the child to destitute and necessitous circumstanc- es. (Hawaii Review Statutes, 1999) Stepparent Access to a much broader support statute, such as Missouri’s: Access (a.k.a., visitation) refers to a nonresident person’s A stepparent shall support his or her stepchild to the same right to spend time with a child. It is a simpler matter for the extent that a natural [sic] or adoptive parent is required to courts than custody because ‘‘the reasons [for granting access] support his or her child so long as the stepchild is living in need not be so convincing as a custody case’’ (Commonwealth the same home as the stepparent. (Missouri Review Statutes, ex rel. Williams v. Miller, 1978, p. 993). Although every state 1999) has enacted third-party visitation statutes (Elrod, Spector, & At- kinson, 1999), the information in the Appendix shows that only Nevertheless, the only state that even approaches mandating about half of them grant stepparents access rights, either directly stepparent support following divorce is North Dakota, where or as third parties (Mayoue, 1998). In the absence of a statute, ‘‘the stepparent is liable, to the extent of the stepparent’s ability, 2002, Vol. 51, No. 4 303
  4. 4. to support [stepchildren] during the marriage and so long there- do so, which can be upheld through either an estoppel or written after as they remain in the stepparent’s family’’ (italics added; contract. An equitable estoppel prevents a person from denying North Dakota Century Code, 1999). an obligation based on one’s own actions or statements to the In general, however, state statutes do not impose a duty to contrary and is based on the principle of fairness (Mahoney, support stepchildren on stepparents following divorce (Mayoue, 1994). When used in the context of stepparent support obliga- 1998; Morgan, 1996a), and courts have routinely upheld the no- tions, the equitable estoppel doctrine prevents a stepparent who tion that stepparents do not have such a duty. In some instances has been acting as a parent (e.g., in loco parentis) from denying this finding has been based on statutory law that plainly states rights and obligations to a child in an attempt to escape paying a stepparent’s duty to support a child terminates upon divorce child support (Morgan, 1996a). (e.g., Brinkerhoff v. Brinkerhoff, 1997). Other courts cite a lack The equitable estoppel option has thus far been limited to of jurisdiction to impose a support obligation on a person who potential financial detriment to the stepchild resulting from the is not the biological or adoptive parent (e.g., Fern v. Fern, 1993). loss of the noncustodial parent’s support brought about by the Regardless of the reasoning courts use to arrive at the decision, stepparent’s conduct (Mahoney, 1994). Wrongdoing on the part the absence of statutory guidelines is suggestive of the notion of a stepparent is a prerequisite because courts do not want to that stepparents should not be burdened with a postdivorce sup- discourage stepparents’ good faith support and involvement dur- Special Collection port obligation unless exceptional circumstances are present. ing a marriage. In Miller v. Miller (1984), the misconduct cri- terion was established on the basis of the stepparent’s interfer- In Loco Parentis ence with the relationship between the children and their non- No court has cited in loco parentis as the reason for impos- residential legal parent. The stepfather had ‘‘strenuously op- ing support obligations on stepparents following divorce. How- posed’’ the biological father’s attempts to form a relationship ever, stepparents have been found to be relieved from postdis- with and pay child support for the children. The court ruled that solution support obligation in the absence of two common char- the biological father should be considered the primary source of acteristics of stepparent-stepchild relationships as part of in loco support; however, because the children’s contact with the bio- parentis—intent to establish the relationship and financial re- logical father had ceased because of the stepfather’s insistence, sponsibility. the stepfather was estopped from denying a support obligation. Intent to establish relationship. There must have been an intent to establish a nurturing parent-child-like relationship for a court to find that an in loco parentis relationship exists (Boos- Policy Recommendations Hersberger, 1998; Mayoue, 1998; Morgan, 1996a). This is an For stepparents who have established close and loving bonds important prerequisite because otherwise stepparents may be dis- with their stepchildren, the prospect of being denied access rights couraged from creating a warm family atmosphere for fear that following a divorce can be frightening. Although family law has it would obligate them to pay support should the marriage end largely neglected stepparents (Mason et al., 2001), great legal in divorce. Conversely, parents who were cold and indifferent strides have been made since the late 1970s toward securing toward their stepchildren would be rewarded by not having to avenues by which these and other third-party relationships can pay child support following marital dissolution. This is clearly be maintained when appropriate (Gregory, 1999). Nevertheless, not the message lawmakers want to send to stepparents, hence the outcome of any particular case is difficult to predict because the intent clause. As one court explained, a stepparent’s desire to take on parental responsibilities weighs heavily on a court’s of the high degree of judicial latitude, which is a product of determination because ‘‘a good Samaritan should not be saddled legislative ambiguity. with the legal obligations of another’’ (Niesen v. Niesen, 1968, Although there are advantages and disadvantages to both p. 664). strict guidelines and judicial discretion (Schneider, 1991), nu- Financial responsibility. In addition to intent, financial re- merous proposals have set forth criteria by which a court might sponsibilities must have been met with no expectation of reim- determine the juxtaposition of a stepparent-child relationship bursement for a court to find that an in loco parentis relationship with the child’s best interests. For example, Mason and Mauldon exists (Boos-Hersberger, 1998; Mayoue, 1998; Morgan, 1996a). (1996) proposed a new stepparent status that would give rec- If reimbursement is expected, then it seems logical to conclude ognition to the financial and emotional role stepparents often that the stepparent has not accepted the duties and obligations play in the lives of stepchildren. According to their proposal, of a parent and therefore would not be in loco parentis. stepparents would be placed in one of two categories: those who Interestingly, if there is no finding of in loco parentis, then act as de facto parents and those who do not. The de facto status a stepparent may be able to partially recover financial contri- would be reserved for ‘‘those stepparents legally married to a butions to the child (Mayoue, 1998). Alaska is one of several natural [sic] parent who primarily reside with their stepchildren, states that do not impose support obligations on stepparents dur- or who provide at least 50% of the stepchild’s financial support’’ ing the marriage. In Burgess v. Burgess (1985), an Alaska court (p. 23). Those who fail to meet these de facto criteria would presumed all support provided by the stepparent to be a gift. essentially be nonexistent in a legal sense. The de facto step- Alaska considers separate property acquired during a marriage parents would garner the same rights and responsibilities of a subject to division (Alaska Statutes, 1999); consequently, the legal parent during the marriage and to some extent—perhaps court ruled that the stepparent’s financial ‘‘gifts’’ of support to- based on the length of the marriage—would retain this position ward the stepchildren were part of the marital property to be following divorce or the death of the stepparent’s spouse (i.e., split. the ‘‘natural’’ parent). The ideas laid forth in Mason and Mauldon’s proposal war- Promise to Support rant consideration. However, although the statutory recognition An obligation to support a stepchild after divorce may arise of a de facto status based on the proposed criteria would be an from either an explicit or implicit promise by the stepparent to improvement on current policy, some potentially harmful limi- 304 Family Relations
  5. 5. tations are introduced as well. For example, the dichotomous tant one that judges and legislators would do well to adopt; the categorization of stepparents (i.e., de facto or nothing) is prob- importance of continuity in children’s lives following divorce is ably not an accurate way to think of stepparent-stepchild rela- well-documented in the literature (Amato, 2000). In addition, tionships; this conceptualization of step relations is not indicative many stepparents who seek parenting time following divorce of their inherent diversity and complexity. This dilemma could would potentially benefit from this perspective. be resolved by measuring the de facto relation on a continuum In general, the Principles comprise a set of sound, well- rather than in absolute terms, with corresponding degrees of pa- reasoned guidelines for family law that, if adopted, will enable rental rights and responsibilities. courts to better meet the diverse needs of families. However, the One such proposal suggested that four factors, each on a Principles are not without flaw. The parenthood provisions, and continuum, be taken into consideration when courts are confront- the criteria for parents by estoppel in particular, are problematic ed with stepparent access: the length of time the stepparent and in a couple of ways. stepchild have lived together, the child’s age during the relation- The first criterion for becoming a parent by estoppel (any ship, the noncustodial biological or adoptive parent’s relationship individual who is liable for child support), is redundant and es- with the child, and the relationship between the stepparent and tablishes a potentially undesirable precedent. Presumably, a step- the child’s custodial parent (McCormick, 1983). Although Mc- Special Collection parent would not be held responsible for child support unless a Cormick proposed these factors on the basis of ‘‘common relationship existed that in itself would warrant parental access sense,’’ Gamache (1997) arrived at a similar conclusion after a rights. Supposing a scenario was to occur where a stepparent is review of empirical findings in the stepfamily literature. granted parent by estoppel status based solely on a support ob- The American Law Institute (ALI) also has attempted to ligation, access to the child would essentially become a com- address the need for a pluralistic conceptualization of parent- modity either bought by stepparent or sold by the parent (de- hood. In the Principles of the Law of Family Dissolution (2001), pending on who sought the support obligation). This is not con- the ALI recognizes that children not living in a nuclear family sistent with the intentions of the Principles, nor does it reflect may have more than two parental figures (Bartlett, 1984). The society’s current conceptualization of childhood (Woodhouse, Principles propose three levels of parental status: ‘‘legal parent,’’ 1999), and therefore legislators and courts that consider adopting ‘‘parent by estoppel,’’ and ‘‘de facto parent.’’ A legal parent the Principles should exclude this criterion. follows the traditional legal definition of a parent (Ramsey, Another peculiar feature of the parent by estoppel criteria is 2001), usually referring to biological or adoptive parents. the 2-year minimum coresidence period before third parties be- The Principles define a parent by estoppel somewhat dif- come eligible for parental rights. It is unclear how or why the ferently than was described earlier. Four routes are provided by ALI settled on 2 years as being a crucial threshold for gaining which the status of a parent by estoppel can be achieved: (a) any third-party parental rights. The establishment of a minimum co- individual liable for child support, (b) living with a child for at least 2 years who was believed in good faith to be one’s biolog- residency period may have arisen out of practical necessity to ical offspring, (c) residing with a child from birth under a co- reduce case overload in the court system. If this is the intent, parenting agreement, and (d) living with a child for 2 years while then a 2-year requirement seems reasonable because in most cas- acting as, and accepting the responsibilities of, a parent (Prin- es stepparents with relationships shorter in duration are unlikely ciples, 2001). This last method of gaining recognition as a parent to gain parental access rights anyway. However, this does not by estoppel clearly has potential for residential stepparents but explain why the 2-year requirement is omitted from the third requires the agreement of both legal parents (Ramsey, 2001). criterion for parent by estoppel, which grants status to anyone The third level of parental status provided for in the Prin- who has lived with a child since birth under a coparenting agree- ciples, the de facto parent, is also promising for stepparents in ment. Although the 2-year standard appears again in the de facto that it only requires either the implicit or explicit consent of one parenthood criteria, the additional clause that requires a ‘‘signif- legal parent. Unlike the parent by estoppel, a de facto parent icant’’ period based on the child’s age and the nature of the would generally not receive primary custody of a child, but he relationship is an important one; it is reminiscent of McCor- or she could be awarded a lesser degree of parental responsibility mick’s (1983) continuum proposal described earlier. (e.g., regular access; Principles, 2001). To achieve the de facto Numerous thought-provoking ideas for extending legal sta- status, a person must have resided with a child both for a period tus to appropriate postdissolution steprelationships have been of 2 years and for a significant period and assumed at least half formulated. These proposals tend to recognize that extensive lim- of the caretaking functions required to raise the child. Provided itations on the court’s ability to consider the unique attributes of the 2-year minimum is met, whether the period of coresidence each steprelationship on a case-by-case basis could prove detri- was ‘‘significant’’ depends on several factors such as the child’s mental to all parties involved. The paramount concern in these age and the intensity of the relationship (Ramsey, 2001). cases must be the child’s best interests, which cannot be served The Principles also note widespread dissatisfaction with the by imposing rigid, all-encompassing rules that serve as ‘‘for- ambiguity of the best interest standard and attempt to focus its mulas for success.’’ Instead, general guidelines that are sensitive scope. The Principles do not make an a priori assumption that to both the degree and uniqueness of each stepparent-child re- a particular parenting arrangement is optimal (e.g., joint custody, lationship, such as McCormick’s (1983) four continuums or the sole custody for the primary caretaker). Rather, they emphasize Principles’ (2001) extensive reconceptualization of parenthood, that unless parents agree on an alternative postdivorce parenting appear to provide an appropriate balance of rules and discretion. arrangement or other extenuating circumstances exist (e.g., An optimal approach to stepparent rights and responsibilities fol- abuse, lack of proximity among the parents), children’s best in- lowing divorce would integrate portions of both proposals. The terests are served through the continuation of predivorce care- guidelines they endorse would remove a great deal of the un- giving patterns (Woodhouse, 1999). The Principles’ focus on certainty currently surrounding postdivorce stepparent-stepchild continuity for determining children’s best interests is an impor- relationships, while allowing for judicial discretion. 2002, Vol. 51, No. 4 305
  6. 6. Practical Implications be especially influential in the areas of law and policy surround- ing divorce and remarriage, particularly with regard to postdi- The ambiguous legal status afforded stepparents who divor- vorce parenting arrangements and the involvement of more than ce presents issues that family practitioners should be prepared to two parents in childrearing. The active involvement of family deal with when working with stepfamilies at all stages of step- scholars in policymaking activities will enhance the quality of family development. For example, a premarital counselor work- stepparent legislation by ensuring that policies are grounded in ing with a potential stepfamily might encourage the couple to empirical evidence. Thus, professionals who work with stepfam- discuss the role expectations and financial obligations each has ilies should couch their experiences, impressions, and research in mind for the steprelationship. The counselor also might in- findings in terms of policy implications to guide future legisla- clude the nonremarrying parent in the discussion or at least en- tion. In addition to scholarly publishing, opportunities exist for courage the couple to consider that parent’s role as well. Also, academics to participate in policy development, advocacy, and it could be suggested that the biological parent develop a will to evaluation (see Monroe, 1991, 1995). indicate the role that he or she would like for the stepparent to play in the child’s life in the event of death. Although not legally Conclusion Special Collection binding, this document would ensure that a judge and surviving family members know the deceased parent’s wishes, which may Stepparents’ postdissolution rights and obligations differ weigh into guardianship decisions. from state to state, and some of the variations in statutes and Ratner (2001) has proposed that mediation become the fo- case law were described. Three proposals to further define step- rum of choice for families disputing third-party involvement with parents’ legal position following divorce were assessed, their children. Divorce mediators can play an especially important role problems and prospects were described, and recommendations in facilitating discussion among remarried parents who are di- for improving them were made. Finally, suggestions were made vorcing. The legal system typically does not interfere when par- for professionals who work with and study stepfamilies. ents are able to reach an agreed upon parenting arrangement; if Increasingly, steprelationships have come to be viewed as a parenting agreement is reached in mediation, then the legal having potentially long-lasting bonds that endure beyond and protocol described above will become irrelevant. However, when apart from the remarriage that created them. It is this potential, a remarriage ends in divorce, if both the nonresidential biological along with the increasing prevalence of remarriage dissolution, parent and a stepparent wish to be involved in the child’s life that has spurred discussion regarding stepparents’ rights and ob- (i.e., three parents are seeking parenting time), then arriving at ligations to stepchildren following divorce. Although much am- a parenting arrangement suitable to all three parents and in the biguity remains, this formative period in stepfamily law has pos- best interest of the child can become especially difficult. Even itively affirmed the importance of stepparent-child relationships if the residential parent and the stepparent reach an agreement in many ways, though tempered by sensitivity toward biological regarding parenting time, the nonresident biological parent may and adoptive parents’ rights. not concur. Therefore, a mediator may want to include all three parents in mediation sessions that deal with the child. References Divorce mediators, lawyers, and other professionals who Alaska Statutes, § 25.24.160 (1999). work with stepfamilies during dissolution should encourage par- Amato, P. R. (2000). The consequences of divorce for adults and children. Jour- ents to consider the child’s perspective during post-stepfamily nal of Marriage and Family, 62, 1269–1287. parenting negotiations. For example, although a remarriage that Bartlett, K. T. (1984). Rethinking parenthood as an exclusive status: The need lasted 5 years may not seem long to the parents, it is virtually a for legal alternatives when the premise of the nuclear family has failed. Vir- ginia Law Review, 70, 879–963. lifetime to a 7-year-old child. A stepparent may be a child’s Bennett v. Jeffreys, 356 N.E.2d 277 (1976). primary father or mother figure, especially if the nonresident Boos-Hersberger, A. (1998). 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Solomonic judgments: Against the best interest of the child. University of Chicago Law Review, 54, 1–45. not included in inheritance laws when a stepparent dies intestate Fern v. Fern, 847 P.2d 129 (Ariz.App. Div. 1 1993). (i.e., without a will), regardless of the length of the steprelation- Fine, D. R., & Fine M. A. (1992). Recent changes in laws affecting stepfamilies: ship or dependence of the child on the stepparent’s financial sup- Suggestions for legal reform. Family Relations, 41, 334–340. port. Stepparents often are important contributors to a child’s de- Fine, M. A. (1997). Stepfamilies from a policy perspective: Guidance from the empirical literature. Marriage & Family Review, 26, 249–264. velopment, both emotionally and financially, but they have only Gamache, S. J. (1997). Confronting nuclear family bias in stepfamily research. begun to receive attention from lawmakers in the last few decades. In I. Levin & M. B. 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