Stepparenting After Divorce: Stepparents' Legal Position Regarding Custody, Access, and Support*

Abstract

Stepparenting After Divorce: Stepparents' Legal Position Regarding Custody, Access, and Support* 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. Key Words: child support, custody, family law, stepfamilies, visitation. Diverse family arrangements challenged the plasticity of family law throughout the latter half of the 20th century (Gregory, 1999; Mason, Fine, & Carnochan, 2001). Courts were increasingly asked to make decisions on issues for which there was previously little, if any, legislative guidance. For example, cases proliferated involving various family structures (e.g., single-parent, divorced, same-sex), relationships (e.g., step, surrogate, adoptive, cohabiting), and mobility (e.g., custodial parent relocation, international access). Although the issues were diverse, many cases revolved around the parent-child dyad, such as stepparents who sought custody of or access to their stepchildren following divorce. Stepparents face considerable obstacles when they seek parental rights following divorce because they must overcome biological parents' rights, which have long been protected by the constitution (e.g., Pierce v. Society of Sisters, 1925). Research has demonstrated that nonbiological caregivers can form relationships with children similar to those of biological parent-child dyads, which appears to validate the stepparents' requests. For example, as a caregiver and child spend more time with one another, a secure attachment relationship more likely develops (Goossens & Van Ijzendoorn, 1990; Howes & Smith, 1995). Similarly, it has been argued that level of attachment should be one of the primary determinants in selecting permanent homes for foster children (Hegar, 1993). Although close emotional bonds are expected in parent-child relationships (especially in the mother-child dyad), they are not limited to this dyad, nor do they depend upon biological or family ties (BoosHersberger, 1998). In fact, children can and do form close emotional bonds in multiple relationships (Goossens & Van Ijzendoorn; Kromelow, Harding, & Tour 'is, 1990; Suess, Grossman, & Sroufe, 1992), including relationships with stepparents (Fine & Fine, 1992; Ganong & Coleman, 1987; Hobart, 1987). Moreover, Bray and Kelly (1998) found that over time stepfamily members begin to think of themselves more as a nuclear family (i.e., a family consisting of a married couple and their biological children) than as a stepfamily. Although lawmakers have been slow to recognize nontraditional family relationships (Morgan, 1996a), including steprelationships (Fine & Fine, 1992; Mason, Fine, & Carnochan, 2001), the burgeoning prevalence and complexity of stepfamilies has created an upsurge in the amount of attention they receive from legislators and judges (Morgan, 1996b). As shown in the Appendix, most states now have legislation that gives third parties (and often stepparents specifically) the legal standing necessary to request custody or access (Mayoue, 1998; Morgan, 1996b). Although a legal avenue has been created for stepparents, and the process of attaining a decision is for the most part clear, the criteria courts use to make decisions at each stage remain ambiguous and largely left to each judge's discretion (Duran-Aydintug & Ihinger-Tallman, 1995). …