Family Relations, 54 (April 2005), 298–319. Blackwell Publishing. Printed in the USA.
Copyright 2005 by the National Counc...
Stepparent Rights and Duties Malia 299
and functioning (Ganong Coleman). In con- ...
300 Family Relations Volume 54, Number 2 April 2005
1999). Skinner and Kohler have...
Stepparent Rights and Duties Malia 301
State and Federal Family ...
302 Family Relations Volume 54, Number 2 April 2005
also known as a functional, ps...
Stepparent Rights and Duties Malia 303
relationships as based on a derivative model (i.e...
304 Family Relations Volume 54, Number 2 April 2005
In the case of divorce, cu...
Stepparent Rights and Duties Malia 305
under extraordinary circumstances, incomplete ...
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identity, felt as if they had...
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attachments with a noncustodial parent later in ...
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obligations ‘‘embedded in soci...
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family experiences and needs. Most legal reform ...
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and stepchildren, (b) honor bi...
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In addition, further...
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Mason, M. A. (...
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Appendix. Continued
Key Issues Legal Re...
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Appendix. Continued
Key Issu...
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Appendix. Continued
Key Issues Legal Refor...
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Appendix. Continued
Key Issues...
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Published on: Mar 4, 2016

Transcripts - Policychallenge

  • 1. Family Relations, 54 (April 2005), 298–319. Blackwell Publishing. Printed in the USA. Copyright 2005 by the National Council on Family Relations. Balancing Family Members’ Interests Regarding Stepparent Rights and Obligations: A Social * Policy Challenge Sarah E. C. Malia** Abstract: Although stepparents often play important roles in their stepchildren’s lives, residential steppar- ents generally have fewer rights than legal guardians or foster parents. U.S. law does not consistently rec- ognize stepparents’ roles, functions, rights, and obligations regarding their stepchildren. This paper examines and synthesizes diverse current stepfamily legal policies and regulations as well as legal and social science policy reform concerns. Policy recommendations related to stepparents’ roles and responsi- bilities that would better balance various interests while promoting children’s welfare and strengthening diverse family forms and relationships are offered. Key Words: family law, family policy, parental obligations, parental rights, stepfamilies. As many as one in three American children now Cultural beliefs about families exert a strong in- can expect to spend some of their childhood fluence on the ways in which family members years living with a stepparent (Seltzer, 1994), perceive themselves and expect to be regarded and many of them form close, enduring rela- by others, which in turn may affect family con- tionships with their stepparents (Fine, 1997; duct and functioning (Ganong & Coleman, Levine, 1996). However, the role of stepparents, 1997; Marsiglio, 2004). Family scholars identify as well as stepparent-stepchild relationships, is two prevailing perspectives regarding how socie- largely invisible in the law (Mason, 1998; ties view stepfamilies: (a) as incomplete institu- Mason, Fine, & Carnochan, 2001). In general, tions to be ignored (Cherlin, 1978) and (b) as state family law inadequately accommodates stigmatized groups, less functional and more diverse family arrangements and relationships problematic than nuclear families (Ganong & (Gary, 2000; Hans, 2002) and often reflects Coleman). It is believed that both deficit-based negative cultural expectations of stepfamilies. perspectives can hinder stepfamily development *I would like to acknowledge and thank Drs. Marilyn Coleman and Julia A. Malia for their constructive comments and suggestions on earlier versions of this manuscript. **Department of Human Development & Family Studies, University of Missouri—Columbia, 314 Gentry Hall, Columbia, MO 65211 (
  • 2. Stepparent Rights and Duties Malia 299 and functioning (Ganong Coleman). In con- Research evidence is examined relative to the trast to a deficit perspective, a normative-adap- tension between the legal recognition of steppar- tive perspective of families acknowledges diverse ent-stepchild relationships and the parental functional family relationships and forms rights of the nonresidential and or noncustodial (Ganong Coleman). Such an approach parent (usually the biological father). Finally, emphasizes social and economic mutual interde- recent legal and social science policy reforms are pendency among members as the central under- considered and discussed in terms of their impli- lying characteristic of family rather than legal cations for family researchers and practitioners. or blood ties (Gary; Younger, 1996). This paper is informed by a normative-adaptive perspective of stepfamilies in terms of its emphasis on legal U.S. Legal Traditions That reform and a more flexible and inclusive notion of family (Young, 1998). It is outside the scope Challenge Reform Attempts of this discussion to articulate fully how legal policies may or may not directly and indirectly There have been few recent substantial changes impact stepfamily roles and behavior; however, in U.S. family law pertaining to stepfamilies as an initial caveat, it is commonly accepted (Fine, 1997). State statutes and court decisions that stepfamily members can be oblivious to or regarding stepparent rights and obligations vary ignore official legal parameters in their daily greatly, and policymakers generally remain lives. For example, informal (extrajudicial) cus- biased toward nuclear family ideology (Ganong, tody or visitation agreements may be arranged Coleman, Fine, McDaniel, 1998; Mahoney, by parents after divorce that depart widely from 1999; Young, 1998) despite input from social the official parenting plan approved by the court scientists and clinicians regarding the need for (Fox Blanton, 1995). stepfamily law reforms (Duran-Aydintug Ihinger-Tallman, 1995; Ganong et al., 1998; Gary, 2000). Although legislatures and courts Purpose and Organization are beginning to recognize diverse family forms slowly, critics argue that legal reform has been The purpose of this paper is twofold: (a) to sporadic and piecemeal (Gary). Subsequently, review key elements of legal and social science changes affecting stepfamilies often have literature pertaining to stepparents’ roles and occurred indirectly as a part of other policy responsibilities, and (b) to develop empirically shifts affecting interested nonstepparent third derived policy reform strategies that would bal- parties (e.g., grandparents; Mason et al., 2001). ance various stepfamily members’ interests while Legal parental rights consist of considerable promoting children’s welfare and strengthening authority to direct the care, control, and up- diverse family forms and relationships. Relative bringing of a child; for instance, parents have the to these purposes, the review is organized around power to make decisions regarding issues such as several areas of emphasis. First, basic legal pro- their child’s religious education and participa- cesses and traditions that highlight how family tion, medical treatments, residence, and school law appears to resist formal recognition of step- location (Skinner Kohler, 2002). Family law parents are summarized (Bartlett, 1999). Next, resists formal recognition of nontraditional care- legal issues pertaining to stepparents’ current givers such as stepparents, regardless of their psy- rights and obligations to their stepchildren both chological or functional roles in a child’s life within marriage and in the event of its dissolu- (Bartlett, 2001), largely because of strong legal tion are considered. Legally recognized options precedent that protects legal parents and seeks to to clarify stepparents’ rights and responsibilities maintain responsible parenting on the part of are addressed, including stepchild adoption. biological or adoptive nuclear parents (Bartlett,
  • 3. 300 Family Relations Volume 54, Number 2 April 2005 1999). Skinner and Kohler have described two Young, 1998). The law declares that a child basic tenets of family law that are used in deter- cannot have more than two parents, each mining parental rights. The first rule, the paren- with full parental rights and duties that are tal rights doctrine, gives biological parents shared with no one else. Family law provides fundamental rights such as an entitlement of for dissolving and recreating families through procreation. The second rule, parenthood as an divorce, remarriage, and adoption. Establish- exclusive status, establishes that the law recog- ing each new spousal or parental family unit nizes a maximum of two parents for a child at entails legally nullifying a preexisting family. any one time. Marital status changes alone do not signify shifts in parental rights and duties (Skinner Parental Rights Doctrine Kohler). Contemporary family law scholar- ship supports notions of responsible shared The parental rights doctrine is based on a series of parenting, or co-parenting, between ex-spouses Supreme Court cases (e.g., Meyer v. Nebraska, or ex-partners who share biological ties with a 1923; Pierce v. Society of Sisters, 1925; Santosky child, despite separate current living arrange- v. Kramer, 1982; Troxel v. Granville, 2000) that ments and likely new relationships (Edwards, demonstrate how fit parents’ fundamental due Gillies, McCarthy, 1999). The legal assump- process rights to make decisions regarding the tion of exclusive parenthood prohibits the rec- rearing of their children are not easily overcome ognition of multiple parental figures within by third parties such as grandparents, steppar- stepfamilies and other family forms (Skinner ents, or the government (Skinner Kohler, Kohler). 2002). Legally, fit parents are defined as In sum, the parental rights doctrine estab- those who adequately care for their children’s lishes the legal priority of biological ties. The needs, not neglecting, abusing, or abandoning premise of exclusive parenthood recognizes only their children; a person or agency challenging one legal set of parents at a time. As such, these a parent’s fitness bears the burden of overcom- two basic tenets of family law result in legal ing the court’s presumption that parents are fit ambiguity for stepparents who may function and act in the best interests of their children as parental figures (Skinner Kohler, 2002)— (Mahoney, 1997; Ramsey Abrams, 2001). particularly those who are in residence with Classifying parental rights as fundamental their stepchildren. Although courts must apply requires courts to apply strict scrutiny, the high- the strict scrutiny standard in such cases, there est standard of protection in constitutional are actually compelling reasons that allow the rights analysis, in contrast to the more common state to limit or overturn parental rights. These reasonable rational basis standard applied in cases include mandatory school attendance, child regarding, for example, government taxes, labor prohibitions, essential health care pro- welfare guidelines, or regulations on commerce. vision, and child endangerment prohibitions Strict scrutiny standard dictates that state inter- (Skinner Kohler). Perhaps a similar child vention or government regulation is proper only welfare–related compelling governmental inter- if there is a compelling state interest (such as est can be used to justify legal recognition of public safety or children’s welfare) met through stepparent-stepchild relationships, particularly least restrictive means (Ramsey Abrams; those characterized by mutual interdependency. Skinner Kohler). The legal challenge, therefore, is to determine how the law may honor a psychological attach- ment that may exist between a stepparent and Parenthood as an Exclusive Status stepchild while not denying the biological Parenthood as an exclusive status is reinforced parents’ constitutional and legal rights to their in several ways (Skinner Kohler, 2002; child (Hans, 2002).
  • 4. Stepparent Rights and Duties Malia 301 State and Federal Family be honored by medical personnel and schools Policies Pertaining to about a child’s medical treatment, class field trip participation, or the like unless authorized by Stepfamilies During Marriage legal documentation (Chambers, 1990; Skinner Kohler, 2002). Additionally, depending on Both federal and state laws set policies that influ- the jurisdiction and situation, state laws have ence stepfamilies. State law governs traditional bearing on whether stepchildren are eligible for family law matters regarding marriage, divorce, benefits connected to their stepparent (such as adoption, and inheritance, whereas federal law workers’ compensation; see for example Ramsey covers a wide range of general welfare benefits Abrams, 2001) as well as stepparents’ respon- and programs that affect the lives of most peo- sibilities relative to any damage caused by their ple, including stepfamily members (Mason, stepchildren. Thus, the law is mixed regarding 1998). Overall, state and federal policies clash in the primacy of biological ties; however, steppar- how they view stepfamilies based on two com- ents’ preferences and rights remain subordinate peting models. State policies usually follow to even nonresidential biological parents. For a stranger model, treating the residential steppar- example, the nonresidential parent’s consent ent as if he/she were a legal stranger to the chil- is required to change a child’s name to that of dren, with no rights or duties. Federal policies the stepparent (Fine). often reflect a dependency model, assuming the residential stepparent is, in fact, supporting his/ Federal Policies her stepchildren, and such policies accordingly limit benefits stepchildren otherwise would be In contrast to most state policies that tend to eligible to receive (Mason). It should be noted delimit stepparents’ rights and guard the rights that residential stepfathers, not stepmothers, of biological parents, federal policy recognizes predominate (Mnookin Maccoby, 2002); the presence of a residential stepparent relative thus, legal polices affecting residential steppar- to stepchildren’s eligibility for a wide variety ents likely are most relevant for stepfathers. of benefits available to dependent children Nonetheless, based on the assumption that step- (Duran-Aydintug Ihinger-Tallman, 1995; parent policies in theory are salient for all stepfa- Mason, 1998). Stepchildren are considered step- milies, inclusive references to ‘‘stepparents’’ parents’ dependents for employee benefits generally will be used when not citing specific guidelines (e.g., health insurance) as well as for research because public policies reflect cultural programs like Temporary Assistance to Needy expectations for stepfamily members, good pol- Families, Social Security (Mason), and Higher icy-making does not discriminate based on gen- Education Resources and Student Assistance der, and diverse household arrangements exist. (Mahoney, 1997). Federal and state approaches differ greatly because of divergent policy pur- poses, goals, and scope. Federal social welfare State Policies regulations focus on general family needs and The rights and responsibilities of stepparents trends, recognize and assume that many steppar- ` vis-a-vis their stepchildren are a central policy ents voluntarily provide financial support (Fine, issue for intact stepfamilies (Fine, 1997). A resi- 1997; Mahoney), and, thus help conserve gov- dential stepparent generally has fewer rights than ernment resources by limiting and reallocating does a legal guardian or foster parent (Mason, benefits eligibility. 1998). For example, even if the custodial parent In Loco Parentis Doctrine wishes to grant his/her spouse authority to act on the child’s behalf, a stepparent cannot validly State courts developed the common law doctrine sign permission slips or make decisions that can of in loco parentis (‘‘in the place of a parent;’’
  • 5. 302 Family Relations Volume 54, Number 2 April 2005 also known as a functional, psychological, or de 2002), particularly if a child otherwise would be facto parent or a parent by estoppel) to resolve the dependent on state support (Gary, 2000). Thus, issue of when parental rights and obligations with regard to financial obligations, there are should be imposed (Gary, 2000; Skinner some exceptions to the ‘‘parenthood as an exclu- Kohler, 2002). A stepparent serving as a de facto sive status’’ rule in that states may allow more parent is someone who has voluntarily and will- than two adults to hold parental status for the ingly taken on the role of the biological parent purpose of imposing a duty to support. Yet, the in a child’s life (Skinner Kohler) and basically logistics of enforcement of a financial obligation has the same rights and responsibilities as the on the part of stepparents during marriage or in biological parents (Fine, 1997). For instance, de the event of marital dissolution as well as the facto parents can discipline their stepchildren implications of such expanded parental status physically, but they also are subject to the same remain unclear (Ramsey Abrams). physical and sexual abuse legal prohibitions Mahoney (1997) argued that a private writ- (Fine). De facto or in loco parentis status is not ten contract is the most effective means available automatic, but it is determined by the steppar- for creating a binding legal obligation for the ent’s intent. Such intent could be stated explic- stepparent to provide future child support. itly, or it could result implicitly from an action Under contract law, the stepparent’s voluntary of assuming parental duties, such as providing child support promise becomes legally enforce- substantial financial support or taking over able when it is made in exchange for promises custodial responsibilities (Skinner Kohler). by the custodial parent regarding other matters However there are limitations. De facto status of value (i.e., the bargain includes consideration, generally is not based on the actual quality of or inducement). Contracts can be modified or the stepparent-stepchild relationship, and the terminated at any time with the consent of both stepparent can terminate the status any time parties. But if problems arise, only contract rem- (i.e., at will), even though there might have been edies, not child support remedies, will be avail- promises to provide future support (Duran- able (Mahoney), thus requiring much more Aydintug Ihinger-Tallman, 1995; Fine; time and money to establish and resolve a claim. Mahoney, 1997). And, although this private approach may clarify a stepparent’s role in certain individual cases, it does not help legitimize or institute consistent Financial Support Obligations expectations for residential and nonresidential In most states, stepparents are not required to stepfamily members. support their spouses’ children financially, although most voluntarily choose to provide contributions (Fine, 1997; Mahoney, 1997). In The Derivative Model of contrast, with or without marriage, biological parents are obligated by statute and legal prece- Stepparent-Child Relationships dent to adequately support their children (Ramsey Abrams, 2001). Only a few states In general then, despite some exclusions to the (e.g., Missouri) have enacted statutes that specif- exclusive parent rule with de facto parent status ically impose on stepparents a child support and support obligations, if death or divorce sev- obligation, but this duty ends if the child does ers marital ties between a child’s legal parent not reside with the stepparent or the marriage and stepparent, state common law and statutes ends. Other state courts sometimes rely on the nearly uniformly abolish any vague legal con- de facto parent doctrine to impose subsequent nection between the stepparent and his/her step- responsibility on stepparents to support their child (Mahoney, 1997; Skinner Kohler, 2002). stepchildren (Hans, 2002; Skinner Kohler, Most lawmakers perceive stepparent-stepchild
  • 6. Stepparent Rights and Duties Malia 303 relationships as based on a derivative model (i.e., likely are important especially for families that step-relationships exist only as long as the mar- have developed close stepparent-child bonds. riage lasts and do not need to be protected). The potential (probable) loss of a stepparent Critics argue that the derivative model ignores through divorce or in addition to the death of the various and complex relationships, expecta- the biological custodial parent could be devas- tions, and emotions involved with stepfamilies tating for children, particularly in instances (Duran-Aydintug Ihinger-Tallman, 1995). where they did not have contact with or support Such a legal assumption can have serious finan- of a nonresidential biological parent. In recogni- cial and emotional impact on stepchildren when tion of this kind of family situation, all states they are not eligible to receive support or other now have provisions that allow third parties, benefits and or suddenly have limited or no con- such as stepparents, to petition for visitation (or tact with a close stepparent in the event of mari- access) rights; in contrast though, only about tal dissolution. If stepparents have not adopted half of the states have passed legislation that their stepchildren, the stepparents usually have permits a third party to file for physical and or to rely on the biological parents’ consent to have legal custody (Hans, 2002; Skinner Kohler, continued access to their stepchildren (Hans, 2002). However, despite third party statutes, 2002). Additionally, in the event of the death of many stepparents who wish to maintain contact a stepparent, many jurisdictions disallow a step- with their stepchildren have difficulty establish- child the right to bring a negligence suit for the ing the legal standing to even bring their visita- accidental death of the stepparent (Mason, tion or custody requests to court, much less 1998; Skinner Kohler). Regardless of step- have their requests granted (Fine; Levine, 1996). relationship quality and potentially close emo- tional ties, if a stepparent dies intestate (without Access and Custody Issues a will), unadopted stepchildren have no inheri- tance rights (Mahoney; Skinner Kohler). Even Courts typically follow a three-step process with stepparents who make a will are limited by other stepparents’ access or custody requests (Hans, inheritance laws that guarantee a share of the 2002). The stepparent must (a) establish she/he estate for the surviving spouse and biological or has standing, or a legal right to bring his/her adopted children (Mahoney). petition before the court (through a third party statute or showing of de facto parent status); (b) defeat the legal preference given to biological Loss of Step-Relationship Bonds and or and adoptive parents (i.e., show a compelling the Residential Biological Parent reason such as potential harm to the child or Divorce or death of a biological parent in a step- that a child protection agency has established family poses certain risks for children who were the legal parent to be unfit and hope the court under their care. Apart from evident emotional views children’s welfare as overriding legal and psychological loss concerns with death or parents’ rights); and (c) present evidence that divorce, these risks are largely financial. As satisfies the child’s best interests standard (e.g., noted previously, stepparents are not legally demonstrate that the stepparent provides such obligated to support stepchildren financially things as a good, healthy environment, stability, after their marriage to the child’s legal parent and continuity and that the child wishes to be ends; and this general rule holds even for the with him/her). Although the process of attaining few states that require stepparents to support a custody or visitation court decision is relatively residential stepchildren during the marriage clear, the criteria courts use to make decisions at (Fine, 1997). The risks associated with severed each stage remain ambiguous and largely left to financial and emotional ties and loss of contact each judge’s discretion (Duran-Aydintug with the stepparent are not understood fully but Ihinger-Tallman, 1995; Hans).
  • 7. 304 Family Relations Volume 54, Number 2 April 2005 In the case of divorce, custody almost always few, if any, rights, or they can privately contract goes to the biological parent rather than to the with the legal parent(s) during or postmarriage stepparent (Skinner Kohler, 2002). Courts to specify duties of support, access, and or prefer to give deference to the legal parent’s custody arrangements. Though the legal system right to decide who can associate with his/her typically does not interfere when parents are child, but stepparents’ access requests are subject able to negotiate and develop an agreed upon to a case-by-case weighing process based on the parenting plan (preferably by considering the best interests of the child standard (Hans, 2002; child’s perspective and needs; Hans, 2002), Ramsey Abrams, 2001). Visitation rights are there is no guarantee that a court will follow a simpler matter for the courts than custody or enforce any private contract reached by disputes because access requests overall are less a child’s legal parents, relatives, and or steppar- intrusive on parental authority and, therefore, ent (Mahoney, 1997). And, if disputes or prob- are more likely to be granted than custody lems do arise, step-relationships clearly receive requests (Hans). little protection. However, stepparents can In the event of the residential biological acquire full parental rights and duties (from parent’s death, courts usually grant custody to a terminated legal parent) through stepchild the noncustodial biological parent, even if the adoption; this final option is discussed at length stepparent-stepchild relationship is much more below. longstanding and emotionally close, once again reflecting the legal primacy of biological parent- hood (Skinner Kohler, 2002). Stepparents Stepchild Adoption: Stepparent must show extraordinary circumstances to be granted custody of stepchildren; they must prove Transformation into Parent their parental fitness, prove that the other parent is unfit, and prove that placement with them Although private contractual arrangements are (the stepparent) is in the best interest of the child one path to solidify stepparents’ rights and obli- (Ramsey Abrams, 2001; Skinner Kohler). gations, the most reliable way to date to resolve However, legal protocol basically is irrelevant legal ambiguities of the stepparent’s role and if biological parents and stepparents are able to establish a legal relationship between a stepparent reach consensual private parenting agreements and stepchild is through adoption (Chambers, (Hans, 2002). Short of stepchild adoption, to 1990; Mason, 1998). Although the number of plan for a child’s future custody arrangement adoptions in the United States is only around with the stepparent, stepfamilies must rely upon 130,000 per year, more than half involve chil- the uncertain methods of (a) guardianship nom- dren adopted by stepparents or other relatives ination by the custodial parent on behalf of his/ (Mahoney, 1999). Under established principles her spouse and or (b) a contract with the non- of adoption law, the legal status of the noncusto- custodial parent agreeing to abstain from seek- dial parent, who is usually the biological father, ing custody (Mahoney, 1997). These methods must be terminated by either voluntary consent are not binding because children’s welfare is or court order (by being declared unfit) prior to involved and takes priority. Courts rely on judi- a stepchild adoption. The legal status of parent, cial discretion and the best interests standard; with its corresponding rights and duties, then is however, guardianship nomination and a con- transferred to the adoptive stepparent, usually tract agreement may add weight to a stepparent’s the stepfather (Mahoney, 1999). Consequently, later custody claim (Mahoney). adoptive stepparents—now parents—are not In summary, as family law stands, stepparents likely to identify themselves as stepparents legally can remain quasi-strangers to their step- (Ganong et al., 1998). Only a few states have children with potential support obligations and provisions in their adoption statutes allowing,
  • 8. Stepparent Rights and Duties Malia 305 under extraordinary circumstances, incomplete Edwards et al. (1999) interviewed British res- or open adoptions, which refer to the creation of idential and nonresidential parents as well as enforceable postadoption visitation rights for the stepparents (46 participants in total) and found former noncustodial parent (or grandparents or complex and ambivalent tensions between two siblings; Mahoney, 1997, 1999). main themes, both seen as being in the child- Empirical research is scarce as to the issues ren’s best interests: (a) children need biological and concerns that stepfamilies consider before parents, and (b) children need social families. stepchild adoption and the impact of differences Middle-class respondents were the most com- in state adoption laws (Duran-Aydintug fortable with, and advocated for, children need- Ihinger-Tallman, 1995; Ganong et al., 1998). ing co-parenting biological parents (shared The scant research that does exist focuses almost parenting dominates British legal discourse as it exclusively on stepfather-stepchild adoptions. does in the United States, even though it can be Both Wolf and Mast (1987) and Ganong et al. difficult to put into practice; Edwards et al.; explored factors stepfamily members consider Mnookin Maccoby, 2002). Working-class when contemplating adoption. Wolf and Mast respondents, in contrast, were more concerned interviewed 55 couples where the stepparent with children needing social families. Most (only two were stepmothers) adopted a stepchild. respondents concurred that stepparents need Ganong et al. interviewed 32 residential parents some form of legal status, hopefully without dis- and stepparents and 22 children (ages 10–19) empowering the nonresidential parent. Exten- from 16 stepfamilies; 14 were stepfather-mother sive time spent together and relationship quality households and 2 were complex households in were seen as legitimate justifications for formal- which both adults were stepparents to residential izing the connection between a residential step- children. Common motives identified in the parent and stepchild. Respondents were split studies for stepchild adoptions included (a) cre- equally among recommending (a) adoption (full ating family unity; (b) desiring to be an inte- rights and duties transferred), (b) establishing grated ‘‘regular’’ (nuclear) family; (c) sharing parental responsibility (shared rights and duties last names; (d) legitimizing family roles, support among multiple parents), and (c) recommend- relationships, or a good stepparent-stepchild ing both approaches as options (Edwards et al.). relationship; and or (e) severing ties from the Finally, Marsiglio (2004) explored through noncustodial parent. Interestingly, Ganong in-depth interviews formal and informal stepfa- et al. found that only one family they inter- thers’ experiences with claiming stepchildren as viewed in depth actually had adopted a stepchild, their own. Only 5 of the 25 married participants and relevant barriers to stepchild adoption (36 in total) had adopted their stepchildren included (a) actively involved nonresidential legally, but a few others were considering doing parents (or having at least somewhat regular so. Marsiglio’s analyses generated several salient contact), (b) anticipated hostile legal proceed- properties and conditions that may influence ings and angry interactions over requests to sur- stepfathers’ perceptions of stepchildren and the render parental rights, (c) financial concerns, claiming process as well as efforts to develop and (d) not wanting continuing obligations and a sense of ‘‘we-ness’’ (group belonging) and a ties if the remarriage ended in divorce. And, fatherlike identity. Most relevant here were the although Wolf and Mast identified transferring properties of seeking public recognition and legal rights to stepparents as an adoption motive solo/shared father identity as well as the condi- for postadoptive stepfamilies, the lack of legal tion of whether the biological father was present relationships between stepparents and stepchil- and involved in the child’s life. For most of dren was not a key adoption motive identified these participants, the biological father was only by most preadoptive/nonadoptive stepfamily peripherally involved with the child, if at all. members interviewed by Ganong et al. Yet, some stepfathers developed a shared father
  • 9. 306 Family Relations Volume 54, Number 2 April 2005 identity, felt as if they had claimed a child even ment while, simultaneously, not discouraging though the child’s father is actively involved, nonresidential parental investment. and sometimes served the role as ally to the A central concern is that children need to biological father, facilitating access and a positive experience secure attachments for optimal relationship between father and child. At the development (Kelly Lamb, 2000). The same time, the stepfathers expressed that it was importance of continuity and stability in child- important to them to be acknowledged as a legit- ren’s lives following divorce of their biological imate father figure by community members and parents or a parent and stepparent is well docu- the law (Marsiglio). The findings from these mented in the literature (Amato, 2000). Stabil- various initial studies demonstrate the diverse, ity is created in different ways: (a) regular complex range of existing stepfamily circum- schedules for children, (b) regular contact with stances and the common theme that legally residential and nonresidential (non/biological) legitimizing stepparent-stepchild bonds is an caregivers, (c) predictable routines and separa- important, albeit not necessarily the most criti- tions, (d) living in one geographic location (chil- cal or relevant, concern for stepfamily members. dren can adapt to more than one household though), (e) consistent and appropriate care, and (f) affection and acceptance (Kelly Lamb). During custody disputes, children often Importance of Fostering Multiple are consulted about which parent they prefer to Parental Relationships: The Need live with; although this grants children some autonomy and power over their living situa- for Legal Reform tions, such responsibility commonly is neither appreciated nor age-appropriate. Children do More research is needed to clarify stepfamily not want the responsibility of their wishes form- members’ perspectives on existing state and ing the basis of decisions to be cut off from federal policies affecting stepfamilies as well as a parent (Trinder, 1997). Edwards et al. (1999) the ramifications of legal reforms that would pointed out that children frequently experience acknowledge step-relationships more consis- loyalty conflicts between parents. Exposure to tently. However, initial evidence summarized ongoing conflict between divorced couples has above from stepparents and residential and non- been shown to be more detrimental to children residential parents suggests that stepfamilies than no contact with the nonresidential parent recognize the legal and family/social tensions (Mnookin Maccoby, 2002). Nevertheless, involved with trying to establish constructive substantial research supports the notion that stepparenting and co-parenting roles within the maintaining meaningful relationships with both traditional, limited legal family framework. parents is a critical factor in children’s adjust- Research regarding child development, divorce, ment to divorce (Amato, 2000; Opie, 1993) and stepfamily relationships largely supports the and maximizing children’s potential psychologi- contention that, in contrast to traditional legal cal attainment (Kelly Lamb). options, stepfamily members generally will ben- Children’s long-term interests in some efit from reforms facilitating multiple, secure instances may be hindered if a biological parental relationships for (step-)children. Of parent’s rights have been terminated voluntarily particular governmental interest, such reforms (e.g., to end an unwed father’s potential duty of would help foster children’s emotional and psy- support; to permit stepchild adoption; Maho- chological well-being as well as financially bene- ney, 1997; Ramsey Abrams, 2001) or even in fit children and reduce reliance on state welfare, the rare cases when the parent was found legally by codifying current discretionary stepparent unfit (Eagle, 1994). It can be important to allow contributions and encouraging further involve- for the possibility that children may establish
  • 10. Stepparent Rights and Duties Malia 307 attachments with a noncustodial parent later in warmth of (step-)fathers with their residential life because their curiosity eventually may be (step-)children in unmarried, cohabiting, and piqued—even if initially they may be uninter- married families. The authors determined that ested in a relationship with a parent with whom marriage, rather than biological ties, differenti- they have had little contact or scarcely know. ated and increased levels of paternal involve- For example, some noncustodial fathers’ percep- ment and investment, as did younger age of tions have shifted over time to realize the impor- a child and lack of financial obligation to non- tance of their relationships with their children in residential children. ways that they had not considered while still Though not all stepparents develop close married to the children’s mothers and all were step-relationships, many can and do provide living together (Edwards et al., 1999). For many needed care and stability for their stepchildren reasons, it may be in a stepchild’s best interests (Hofferth Anderson, 2003; White to be adopted by or remain in the custody of Gilbreth, 2001). With the goal of fostering step- a stepparent; however, it may not be in the children’s well-being, when stepparents provide child’s best interests to sever all ties with the economic and other forms of adult support, biological parent (Trinder, 1997; Woodhouse, even weak emotional ties cannot be discounted 1994). Even if a relationship with both biologi- (Mason, 1998). Research findings demonstrate cal and nonbiological parents may be inappro- that nonbiological caregivers can form close priate or unimportant at an early stage of emotional relationships with children in their a child’s life, fostering relationships with multi- care that are similar to those of biological par- ple parents may be meaningful and emotionally ent-child family ties (Coleman Ganong, important for a child at a later stage of life 1990; Rossi Rossi, 1990). Also, study find- (Eagle; Woodhouse). ings suggest that noncustodial fathers themselves White and Gilbreth (2001) focused on step- might not feel able to justify continued relation- children’s relationships with both a biological ships with their children merely on the basis of father and a stepfather. They found support for biological links, instead focusing on the same the accumulation model, which claims that both legitimating factors, time, and relationship fathers play an active and important role in step- quality as do stepfathers (Edwards et al., 1999). children’s lives, and that there was a significant Residential stepfathers, in particular, make positive association between quality of relation- substantial contributions to family household ship with stepfathers and child outcomes. It has income, helping cover basic living costs and been evidenced that multiple parents cooperat- improving their stepchildren’s material well- ing in open adoption family networks can being (Edwards et al., 1999; Fine, 1997; Mason, enhance children’s socioemotional well-being 1998). For instance, the incomes of stepfamilies (Grotevant, Ross, Marchel, McRoy, 1999). are three to four times greater than incomes of Stepparents often may act as key mediators in single mothers (Mason). Anderson, Kaplan, and stepfamilies (Walker, 1992), and biological and Lancaster (2001) found that differences were nonbiological parents together can, and some- smaller within blended families than across times do, work collaboratively together for the families when comparing paternal financial children’s best interests (Grotevant et al., 1999; expenditures for step- and biological children. Marsiglio, 2004). However, more research is However, stepparents usually are characterized as needed to determine the effects on children providing discretionary, secondary financial when their biological and nonbiological parents assistance for the custodial biological parent, and dispute regularly. Additional support that chil- although expected, such support typically is not dren can accumulate fathers was found by Hof- an enforceable legal obligation to stepchildren ferth and Anderson (2003) when they examined (Ganong, Coleman, Mistina, 1995). On the the engagement, availability, participation, and other hand, Edwards et al. have argued that
  • 11. 308 Family Relations Volume 54, Number 2 April 2005 obligations ‘‘embedded in social parenthood children as well as validate the unique, key may be more extensive and durable than those of parental contributions made by step- and biolog- natural parenthood’’ (1999, p. 87). Many non- ical parents. custodial biological fathers have residential step- children of their own whom they support (Hofferth Anderson, 2003), and they may Legal Versus Social Science feel pinched by the heavy burden of contrib- Policy Proposals uting to two households, particularly if the custodial mother has remarried (Mason). Thus, existing research indicates that stepfathers Laws and policies help define and shape the do in fact share economic resources with their concepts of social normalcy and deviancy stepchildren, contributing to the stepfamily’s (De’Ath, 1997); as such, it is particularly signifi- economic viability, and policy reforms legitimiz- cant that stepparents’ interests have been virtu- ing these discretionary functions would further ally ignored in family law despite the prevalence enhance support possibilities. of stepparents. The lack of consistent, accepted In conclusion, maintaining multiple parental societal parenting expectations for stepfamilies relationships in stepfamilies has been associated and obstacles confronting stepparents in even with better child outcomes (White Gilbreth, functional family relationships have prompted 2001). Stepparents can play an important role in legal and social science scholars to advocate for parenting and financially supporting their step- policy reforms clarifying stepparent rights and children (Fine, 1997; Rossi Rossi, 1990), par- responsibilities (Skinner Kohler, 2002). Step- ticularly considering consistent findings that family formation creates dynamic, complex contact between children and their noncustodial familial structures often with more than two parents (typically fathers) diminishes signifi- parents (biological, adoptive, and or functional), cantly over time (Amato, 2000; Mason, 1998; a phenomenon that conventional policymakers Thompson Amato, 1999). On the other are not well versed in addressing (Mason, 1998). hand, besides the fact that parental rights are Selected stepparent policy reforms, recom- strongly protected by constitutional and legal mendations, and proposals are summarized in doctrine, many noncustodial parents maintain an Appendix. The Appendix is organized contact with their children to some degree according to six key stepfamily issues, with the through the years (Thompson Amato), and corresponding legal and social science–related children usually experience a substantial loss reforms grouped together under each subhead- when cut off from a parent (Woodhouse, 1994). ing. The six categories are: (a) advocacy goals Stepparent-stepchild role ambiguity and lack of and assumptions, (b) legal status and parenting agreed understanding of the stepparenting role authority, (c) financial support obligations, (d) and responsibilities often exacerbate problems shared parenting and stepchild adoption, (e) between stepparents and stepchildren (De’Ath, access and visitation, and (f) custody. 1997; Ganong Coleman, 1997). Step-rela- Generally speaking, policy reforms proposed tionships vary greatly in complex, dynamic ways, by legal scholars remain within established legal but Fine, for instance, persuasively has argued precedent but try to strike a better balance that initial empirical evidence supports the con- between strict guidelines (too limiting or inva- tention that clarification of the stepparent role in sive) and broad judicial discretion (too unpre- many cases would facilitate resource sharing and dictable). Although such a conservative approach family adjustment for stepfamily members. Rec- may result in more realistically enforceable ognizing a legitimate role for each parental figure policy suggestions that are less likely to be con- in a child’s life could help minimize loyalty con- stitutionally challenged, it also limits creative flicts and normalize stepfamily experiences for innovations that reflect complex, real-world
  • 12. Stepparent Rights and Duties Malia 309 family experiences and needs. Most legal reform stepparent financial support obligations without proposals focus on establishing consistent criteria concurrent increases in parental rights or recog- for limiting or extending stepparent financial nition of the important roles that many steppar- support obligations as well as strengthening de ents play in their stepchildren’s lives. Social facto parent standing with the intent that courts science and legal scholars have offered their rec- will more seriously consider stepparent access or ommendations endorsing or discouraging policy custody requests as being in stepchildren’s best reforms related to stepparents’ rights. Again, the interests. Generally, proposals by social science deep-rooted legal limitation most consistently researchers are more likely to advocate for using challenged is the fact that children are prohibited a normative-adaptive perspective of stepfamily from having more than two legal parents. Com- functioning (Ganong Coleman, 1997) to mon sense indicates that this legal limitation push the law well beyond its existing limits. Yet, conflicts with many stepchildren’s daily real-life Popenoe (1994), a proponent of the sociobiolog- experiences of multiple parental figures, and ical family perspective, has argued to the con- initial available research findings have shown trary and contends that stepfamilies should be that children are capable of and can benefit actively discouraged. Consistent with the ap- from multiple concurrent attachments (Kelly proach taken in this paper, most social science Lamb, 2000; White Gilbreth, 2001; reform proposals assume that validating stepfa- Woodhouse, 1994). milies as an authentic institutionalized family Research findings suggest there could be con- form is a worthy policy goal. Thus, recommen- siderable societal resistance if legislation were dations emerging from this perspective empha- passed requiring stepparents to support stepchil- size that stepparent rights should match dren following a divorce, but in some cases con- obligations, and the exclusive parenthood doc- tinued support is expected and appropriate trine should be expanded to recognize multiple (Fine, 1997). According to the equitable estoppel parents legally in order to minimize unwarranted standard, stepparents will have a support obliga- loss for children. tion even after divorce if they consciously estab- lished an expectation on the part of the biological parent and or stepchild that the child Summary of Recommendations would rely financially on the stepparent (Fine). and Implications for Researchers However, courts have been hesitant to grant de and Practitioners facto rights or to attach obligations to unwilling stepparents (Skinner Kohler, 2002), probably reasonably concluding that attempts to force In conclusion, stepparent-stepchild relationships continued relationships and support would be increasingly have come to be viewed as including ineffective, counterproductive, and even detri- potentially long-lasting bonds that exist inde- mental for the stepchildren. Thus, there are pendently from the marriages that created the considerable challenges to development and connections (Fine, 1997; Hans, 2002). Existing acceptance of a consistently flexible and inclu- family law insufficiently defines stepparents’ sive legal definition of family that would allow rights and obligations to their stepchildren and for the potential of more than two parental is shaped by prevailing negative cultural perspec- figures (legally) rearing children and help insti- tives regarding stepfamilies, essentially ‘‘Ôchan- tute normative-adaptive stepfamily role expecta- neling’ people into nuclear families through tions and responsibilities. a web of incentives and disincentives’’ (Young, Yet, a more inclusive legal definition of fam- 1998, p. 511, citing Schneider, 1992). What lit- ily could potentially permit stepfamilies to more tle progress that has occurred in state and fed- easily (a) honor psychological attachments and eral family law seems geared toward increasing support that may exist between stepparents
  • 13. 310 Family Relations Volume 54, Number 2 April 2005 and stepchildren, (b) honor biological parents’ shared similar problems, concerns, and stress- relationships with and legal rights to their chil- ful experiences. Particularly salient stepfamily- dren, and (c) prevent unnecessary loss for chil- related research includes extant child and dren. More specifically, state family policy family development findings, systems theory recommendations that would more consistently concepts and dynamics, unique characteristics of recognize diverse step-relationship ties while bal- stepfamilies, and concrete ways various stepfami- ancing various stepfamily members’ interests lies have found to build step-relationship affinity include (a) establishing residence orders (e.g., and investment, adjust to stressors, and consis- Great Britain’s Children Act of 1989) that per- tently function adaptively. Stepfamily members mit stepparents to voluntarily choose to petition also can benefit from assistance in developing (under specified guidelines) to assume and share more effective communication and conflict parental responsibility (rights and duties) with management skills to utilize in family meetings biological parents; (b) providing open adoption or mediation sessions with biological parents statutes that include enforceable visitation rights and stepparents (and children as appropriate) in for the ‘‘terminated,’’ nonresidential parent; (c) order to negotiate parenting rights and duties balancing stepparent support obligations with suitable for their differing interests and needs concomitant rights and authority and clarifying and particular circumstances. such duties and rights while married and if Stepfamilies probably will be unfamiliar with a marriage is disrupted; and (d) establishing how the legal system or ‘‘the law’’ works; thus, independent stepparent legal standing and a fair a brief overview—presented in everyday chance to be granted custody—not just visita- English—of the system, legal doctrines, and tion—rights, truly considering children’s best existing state and federal stepfamily policies interests, not just their biological ties. As Young could be quite constructive for helping stepfa- (1998, p. 555) has pointed out wisely, at a time milies feel more at ease about the process as well when fewer children reside with two biological as preparing them before they consult any attor- parents, more children live in economically ney. Stepfamily members need to be educated strained conditions, and the state seems less regarding (a) their current and potential rights likely to provide support, ‘‘the Ôchanneling func- and obligations, (b) available options for clarify- tion’ of law . . . should be contemplating ways ing step-relationships, and (c) probable pros and of encouraging more people to feel greater levels cons of each option and legal intervention in of [connection and] responsibility for more general. Practitioners can assist stepfamily mem- children.’’ bers in considering not just legal but also social, emotional, and practical ramifications of various options, for instance, by playing ‘‘devil’s advo- Implications for Practitioners and Researchers cate’’ to test stepfamily members’ underlying Specific suggestions for family practitioners intentions and assumptions and to encourage working with stepfamilies center on education self-reflection. Legal intervention may not be and establishing informal partnerships or referral appropriate or necessary for each stepfamily. networks with other helpful professionals— However, practitioner education also should be primarily estate planning and tax attorneys, fam- aimed at reducing financial risk for children in ily or divorce attorneys, accountants, mediators, the event of parental death or divorce. Parents and the like. Family practitioners can provide should be encouraged strongly to put agree- stepfamilies critical social science research and ments regarding their children in writing and to basic legal education after carefully listening to, write wills that include a guardianship provi- probing, and validating various members’ sion. Stepchildren must be expressly included in unique needs and interests. In general, stepfami- a stepparent’s will to inherit from him or her lies can benefit from learning that others have any property or estate interest.
  • 14. Stepparent Rights and Duties Malia 311 In addition, further research efforts are Bartlett, K. T. (1999). Improving the law relating to postdivorce arrange- ments for children. In R. A. Thompson P. R. Amato (Eds.), The needed. Little is known about stepparents’ and postdivorce family: Children, parenting, and society (pp. 71–102). Thou- stepchildren’s perceptions of family law policies sand Oaks, CA: Sage. Bartlett, K. T. (2001). Principles of the law of family dissolution: Analysis and whether or how they should be reformed. and recommendations. Duke Journal of Gender Law and Policy, 8, 1–85. Scant social science research exploring the Chambers, D. L. (1990). Stepparents, biologic parents, and the law’s per- implications of stepparents’ ambiguous legal sta- ception of ‘‘family’’ after divorce. In S. D. Sugarman H. H. Kay (Eds.), Divorce reform at the crossroads (pp. 108–127). New Haven, CT: tus for children and families is available (Hans, Yale University Press. 2002; Skinner Kohler, 2002), as is research Cherlin, A. (1978). Remarriage as an incomplete institution. American Journal of Sociology, 84, 634–650. regarding whether maintaining relationships Coleman, M., Ganong, L. (1990). Remarriage and stepfamily research in with both biological and nonbiological parents the 1980s: Increased interest in an old family form. Journal of Marriage and the Family, 52, 925–940. would be beneficial to most children (Holtzman, De’Ath, E. (1997). Stepfamily policy from the perspective of a stepfamily 2002). Before new progressive policies are organisation. Marriage and Family Review, 26, 265–279. Duran-Aydintug, C., Ihinger-Tallman, M. (1995). Law and stepfamilies. drafted and constitutionally tested, stepfamily Marriage Family Review, 21, 169–192. Eagle, R. (1994). The separation experience of children in long-term care: members from diverse ethnic and socioeconomic Theory, research, and implications for practice. American Journal of backgrounds need the opportunity to voice Orthopsychiatry, 64, 421–434. Edwards, R., Gillies, V., McCarthy, J. R. (1999). Biological parents and their experiences and recommendations for ap- social families: Legal discourses and everyday understandings of the proaches that will strengthen, rather than hinder, position of step-parents. International Journal of Law, Policy, and the Family, 13, 78–105. stepfamily arrangements and relationships. Fine, M. A. (1997). Stepfamilies from a policy perspective: Guidance from Lastly, family scholars and professionals need the empirical literature. Marriage and Family Review, 26, 249–264. Fox, G. L., Blanton, P. W. (1995). Noncustodial fathers following to take an active role in stepfamily legislative divorce. Marriage Family Review, 20, 257–282. policymaking to ensure that future judicial Ganong, L. H., Coleman, M. (1997). How society views stepfamilies. In I. Levin M. B. Sussman (Eds.), Stepfamilies: History, research, and guidelines and legislative measures are grounded policy (pp. 85–106). New York: Haworth Press. Ganong, L. H., Coleman, M., Fine, M. A., McDaniel, A. K. (1998). in empirical evidence (Fine, 1997; Skinner Issues considered in contemplating stepchild adoption. Family Rela- Kohler, 2002). Family scholars and practitioners tions, 47, 63–71. Ganong, L. H., Coleman, M., Mistina, D. (1995). Normative beliefs can advocate for stepfamily policy changes that about parents’ and stepparents’ financial obligations to children follow- appropriately redefine the scope of parental ing divorce and remarriage. Family Relations, 44, 306–315. Gary, S. N. (2000). Adapting intestacy laws to changing families. Law and authority as well as the legal concept of being Inequality: A Journal of Theory Practice, 18, 1–82. a parent (Skinner Kohler) to foster functional Goldstein, M. (1995). The rights and obligations of stepparents desiring visitation with stepchildren: A proposal for change. Probate Law nonbiological and biological parent-child rela- Journal, 12, 145–171. tionships. Family policy reform is challenged by Grotevant, H. D., Ross, N. M., Marchel, M. A., McRoy, R. G. (1999). Adaptive behavior in adopted children: Predictors from early risk, questions about the feasibility of maintaining collaboration in relationships within the adoptive kinship network, and openness arrangements. Journal of Adolescent Research, 14, 231– a delicate balance among divergent private and 247. public interests related to complex step-relation- Hans, J. D. (2002). Stepparenting after divorce: Stepparents’ legal position regarding custody, access, and support. Family Relations, 51, ships. Nonetheless, focusing on the overarch- 301–307. ing goal of promoting children’s welfare and Hofferth, S. L., Anderson, K. G. (2003). Are all dads equal? Biology ver- sus marriage as a basis for paternal investment. Journal of Marriage and strengthening diverse family roles and forms can Family, 65, 213–232. help guide policymakers through the quagmire. Holtzman, M. (2002). The ‘‘family relations’’ doctrine: Extending Supreme Court precedent to custody disputes between biological and nonbiologi- cal parents. Family Relations, 51, 335–343. Kelly, J. B., Lamb, M. E. (2000). Using child development research to make appropriate custody and access decisions for young children. Family and Conciliation Courts Review, 38, 297–311. References Levine, B. (1996). Divorce and the modern family: Providing in loco parentis stepparents standing to sue for custody of their stepchildren in a dissolution proceeding. Hofstra Law Review, 25, 315–352. Mahoney, M. M. (1997). Stepfamilies from a legal perspective. Marriage Amato, P. R. (2000). The consequences of divorce for adults and children. and Family Review, 26, 231–247. Journal of Marriage and Family, 62, 1269–1287. Mahoney, M. M. (1999). Open adoption in context: The wisdom and Anderson, K. G., Kaplan, H., Lancaster, J. B. (2001). Men’s financial enforceability of visitation orders for former parents under Uniform expenditures on genetic children and stepchildren from current and former Adoption Act. Florida Law Review, 51, 89–142. relationships (Population Studies Center Research Report No. 01–484). Marsiglio, W. (2004). When stepfathers claim stepchildren: A conceptual Ann Arbor: University of Michigan. analysis. Journal of Marriage and Family, 66, 22–39.
  • 15. 312 Family Relations Volume 54, Number 2 April 2005 Mason, M. A. (1998). The modern American stepfamily: Problems Rossi, A. S., Rossi, P. H. (1990). Of human bonding: Parent-child rela- and possibilities. In M. A. Mason, A. Skolnick, S. D. Sugerman tions across the life course. New York: A. de Gruyter. (Eds.), All our families (pp. 95–116). New York: Oxford University Santosky v. Kramer, 445 U.S. 745 (1982). Press. Schneider, C. E. (1992). The channeling function in family law. Hofstra Mason, M. A., Fine, M. A., Carnochan, S. (2001). Family law in Law Review, 20, 495–532. the new millennium: For whose families? Journal of Family Issues, 22, Seltzer, J. (1994). Intergenerational ties in adulthood and childhood experi- 857–881. ence. In A. Booth J. Dunn (Eds.), Stepfamilies (pp. 89–96). McCormick, M. (1983). Family law—Child visitation—Alaska recognizes Hillsdale, NJ: Lawrence Erlbaum. stepparent’s right to visitation with the stepchild where the stepparent Skinner, D. 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(1994). ‘‘Out of children’s needs, children’s rights:’’ The estoppel and de facto parents under the American Law Institute’s prin- child’s voice in defining the family. Brigham Young University Journal of ciples of the law of family dissolution. Duke Journal of Gender Law and Public Law, 8, 321–341. Policy, 8, 285–300. Young, A. H. (1998). Reconceiving the family: Challenging the paradigm Ramsey, S. H., Abrams, D. E. (2001). Children and the law in a nutshell. of the exclusive family. American University Journal of Gender and the St. Paul, MN: West Group. Law, 6, 505–555. Redman, R. M. (1991). The support of children in blended families: A call Younger, J. T. (1996). Responsible parents and good children. Law and for change. Family Law Quarterly, 25, 83–94. Inequality: A Journal of Theory Practice, 14, 489–520. Appendix. Key Issues, Legal, and Social Science Reforms for Addressing Stepparents’ Rights and Obligations Key Issues Legal Reforms Social Science Reforms Advocacy (A) American Bar Association Family Law (A) Duran-Aydintug and Ihinger- goals and Model Act (ABA FLMA; see Mason, Tallman (1995) have proposed con- assumptions 1998) includes a provision that requires sistently establishing stepparents’ stepparents to assume a duty of support legal standing in order to promote but only if the child is not adequately sup- authenticity of the stepfamily as a via- ported by the legal parents. ble family form and to clarify family behavior guidelines. (B) American Law Institute Principles of (B) Edwards et al. (1999) have argued Family Dissolution (ALI PFD; see Hans, that children need biological parents 2002; Ramsey, 2001) attempts a pluralistic Magic, Areand social families; thus, conceptualization of parenthood, allocat- flexible policy provisions that provide ing in custody cases responsibility for for all potential sets of important (rather than parental rights in) children. dyads should be implemented. (C) Bartlett (1999) has encouraged parents to (C) Fine (1997) has asserted that two negotiate their own parenting agreements pressing issues require reforms: (1) to fit their needs. When parents cannot clarifying the legal rights and duties agree, they should adopt the approximation of stepparents, and (2) developing standard to make residential arrangements a more sensitive standard to deter- for children based on the proportion of mine when the stepparent-child rela- day-to-day caretaking responsibilities each tionship is mutually beneficial to parent exercised before separation. each.
  • 16. Stepparent Rights and Duties Malia 313 Appendix. Continued Key Issues Legal Reforms Social Science Reforms (D) Chambers (1990; also see Duran-Aydin- (D) Ganong et al. (1998) have argued tug Ihinger-Tallman, 1995; Mason, for legitimizing stepfamily roles that 1998) has been reluctant to impose duty lack clear, institutionalized norms and reforms because great diversity in stepfami- allowing for flexible, creative new role lies discourages standardization, particu- construction (e.g., othermothers). larly with support obligations. (E) Great Britain’s Children Act of 1989 (E) Hans (2002) has contended that (GBCA; see De’Ath, 1997; Edwards et al., the moderate approach is optimal in 1999; Fine, 1997) regards childrearing as balancing rules and judicial discre- primarily the job for natural parents and tion. Thus, policies should take nei- increased rights for nonresident parents. ther an overly permissive nor a rigidly Children no longer are regarded as parents’ restrictive approach to determining property but rather as a responsibility. And stepparent privileges and obligations. becoming a legal parent is dependent on three criteria: biology, marriage, or resi- dence. (F) Similarly, Goldstein (1995) and Levine (F) Mason (1998) has conceptualized (1996) have asserted that legal standing a new de facto parent model, i.e., requirements are too restrictive, and denial a comprehensive framework that cov- of stepparent standing operates as an ers various stepparent-child relation- improper absolute preference for biological ship aspects and extends to federal ties. Courts need to focus solely on a child’s and private policy benefits in order to welfare. better protect stepchildren’s welfare and strengthen stepparent-child rela- tionships. (G) Ramsey (1994) has urged protecting the (G) Popenoe (1994; also see Mason) child, stepparent, and both biological has been a proponent of the sociobio- parents, establishing nonnuclear family logical family perspective, i.e., in order norms, and recognizing diverse family to promote their own genes, people structures. will give unstintingly only to their bio- logical children. Thus, a central advo- cacy goal is to encourage married, biological, two-parent families. (H) Magistrate Judge Redman (1991; also (H) Skinner and Kohler (2002) have see Duran-Aydintug Ihinger-Tallman) argued for establishing a legal struc- has asserted that a new and responsible sys- ture that facilitates collaborative rela- tem of family law is overdue. tionships, even between multiple adults in nontraditional or extended kinship networks. (I) Uniform Adoption Act open adoption (I) Visher (personal communication provision (UAA; see Mahoney, 1997, to D. Samuels, Esq., see Duran- 1999) aspires to increase the number of Aydintug Ihinger-allman) has
  • 17. 314 Family Relations Volume 54, Number 2 April 2005 Appendix. Continued Key Issues Legal Reforms Social Science Reforms stepchild adoptions in order to give more identified two main policy concerns: children the advantage of living in a house- (1) overt and covert biases against hold with two legal parents. stepfamilies as a viable family form, and (2) concomitant rights will not accompany increased stepparent duties. (J) Young (1998) has argued for a more inclusive reconceptualization of the family to include nontraditional family units and the range of roles potentially played by var- ious actors, such as stepparents, in a child’s life. Legal status and (A) ABA FLMA strengthens stepparents’ (A) Edwards et al. (1999) have argued parenting rights postdivorce but fails to clarify their for empowering stepparents without authority rights during the marriage and does not deal disempowering legal parents. Step- with support obligations if the marriage parents need some form of legal sta- ends (at the period of maximum economic tus via stepchild adoption and or vulnerability for children; Amato, 2000). parental responsibility. (B) ALI PFD reflects the societal view that (B) Fine (1997) also has suggested a child’s legal parents ordinarily should implementing a residence order (RO) retain parental responsibility, while recog- option, one that specifically focused nizing exceptional circumstances in which on stepparent roles and the needs of a child’s needs are best served by other psy- diverse stepfamilies. chological parent(s). (C) Bartlett (1999) has asserted that explicit (C) Ganong et al. (1998) have recom- rules are needed to define the relevant mended establishing a generalized functional parent status to be protected, parental responsibility status for step- while maintaining parenthood as an exclu- parents. sive status. (D) GBCA provides how to petition for a res- (D) Hans (2002) has suggested measur- idence order (RO) to assume legal parental ing the de facto parent relationship responsibility (available after 2 years of core- on a continuum rather than in abso- sidence) for those who wish to take on the lute terms, with corresponding rights and duties of parenthood, including degrees of parental rights and respon- support. sibilities. (E) Goldstein (1995) has contended that (E) Mason (1998) has asserted that courts’ focus has been diverted from child- stepparents be categorized either as de ren’s well-being with the widespread facto parents or not (and, if not, requirement of proving an in loco parentis essentially legally nonexistent). De relationship to establish stepparent stand- facto status arises if (1) legally mar- ing to petition for access or as grounds to ried to a child’s natural parent and grant them access rights. primarily resides with the stepchild, or (2) provides at least 50% of the stepchild’s financial support.
  • 18. Stepparent Rights and Duties Malia 315 Appendix. Continued Key Issues Legal Reforms Social Science Reforms (F) Ramsey (1994) has endorsed establishing (F) Popenoe (1994) has argued that, on an RO option (similar to Great Britain’s), the contrary, stepfamilies should be both to clarify rights and duties and to actively discouraged. (Note: This is legitimate the role of a stepparent, without beyond the stranger model, which is diminishing the rights of the biological neutral as to state activity.) parents. (G) Switzerland stepparent policy (Swiss law; (G) Skinner and Kohler (2002) have see Edwards et al.) provides that steppar- recommended that parental rights ents are treated as foster parents, with the not be bestowed automatically, but requisite obligations and authority. more than two adults could be legally recognized as parents in instances when they already are assuming such roles and responsibilities. (H) Visher as well as Duran-Aydintug and Ihinger-Tallman (1995) have endorsed creating an RO option that is attainable only after the 5th year of marriage to the custodial parent. Financial (A) ABA FLMA provides that a support duty (A) Duran-Aydintug and Ihinger- support may be imposed even if a close step- Tallman have argued that as long as obligations relationship does not exist, but the act is associated rights accompany the silent as to what happens if the stepparent support obligation throughout mar- and custodial parent divorce. riage, stepparent support continues postdivorce. (B) GBCA imposes no financial obligations (B) Fine (1997) has recommended that on stepparents, but they can be held liable policies should provide stepparents for support after divorce if they treated with the option (but not the require- a stepchild as a child of the family. ment) of becoming more involved in stepchildren’s lives, i.e., assuming parental rights and responsibilities. (C) Chambers has argued that a duty to sup- (C) Mason (1998) has asserted that port should be strictly voluntary for step- stepparents would provide mandatory parents, who should not be held responsible support during marriage, but, if the for stepchildren after divorce when they marriage ends, a support formula that never developed a close relationship. matches half the number of years of dependency would be applied as a transitional cushion. Also, minor stepchildren with a de facto parent would be treated as his/her natural child for public and private benefits, including inheritance rights (see also Gary, 2000, who has offered a similar proposal).
  • 19. 316 Family Relations Volume 54, Number 2 April 2005 Appendix. Continued Key Issues Legal Reforms Social Science Reforms (D) Ramsey (1994) has contended that a sup- port duty will exist to the extent specified in ROs, noting that such would remain in effect even in the event of divorce. (E) Redman (1991) has asserted that the re- placement parent would remain financially responsible for stepchildren, unless and until the natural parent remarries another. (F) Swiss law provides that stepparents may be expected to support the residential bio- logical parent (and his/her children). Shared (A) ALI PFD proposes three levels of parental (A) Edwards et al. (1999) have argued parenting and status: (1) legal parents (traditional); (2) par- that co-parenting is a good idea in stepchild ent by estoppel (provides support, living to- theory but difficult to put into prac- adoption gether for 2 years or greater, both legal tice and that adoption should not parents agree, etc.); or (3) de facto parent occur too soon because building rela- (less stringent requirements, includes either tionships takes time. implicit or explicit consent of only one legal parent). (B) Bartlett has argued that responsible bio- (B) Ganong et al. (1998) have asserted logical parents should have sufficient access that incomplete (open) adoptions are at divorce to maintain a meaningful rela- a better match to stepfamilies’ real tionship with their children, even if that role experiences. parent has not been substantially engaged in a caretaking role. (C) Chambers has promoted voluntary (C) Mason (1998) has proposed that adoption but not completely cutting off stepparents be empowered as an addi- the other biological parent in the process. tional parent (with de facto status giving rise to basically the same par- enting rights and duties as a natural parent) and that noncustodial parents’ existing rights and duties not be invalidated. (D) GBCA provides that the RO does not (D) Visher has recommended moving affect other (biological) parents’ rights and slowly when considering adoption responsibilities, so such concerns are not because terminating parental ties may applicable. have a serious emotional impact on children and to ensure one is not forcing the stepfamily into a ‘‘regular’’ family. (E) The European model of simple adoption (law in many European nations; see Edwards et al.) creates a new legal parent- child relationship through adoption while

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