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Stepparenting After Divorce: Stepparents’ Legal PositionRegarding Custody, Access, and Support*

Jason D. Hans**

Both the research and the clinical literature indicate that over time stepparents and stepchildren may develop emotional attachmentssimilar to their biological counterparts. Nevertheless, stepparents are legal strangers to stepchildren—the relationship is not protectedby law during marriage or following marital dissolution. There are some legal avenues by which stepparents may obtain parentingrights or be required to provide financial support for a stepchild following divorce. The legal process encountered by stepparentsregarding custody, access, and child support are elucidated here, in addition to a discussion of policy recommendations and practicalimplications.

Diverse family arrangements challenged the plasticity offamily law throughout the latter half of the 20th century(Gregory, 1999; Mason, Fine, & Carnochan, 2001).

Courts were increasingly asked to make decisions on issues forwhich there was previously little, if any, legislative guidance.For example, cases proliferated involving various family struc-tures (e.g., single-parent, divorced, same-sex), relationships (e.g.,step, surrogate, adoptive, cohabiting), and mobility (e.g., custo-dial parent relocation, international access). Although the issueswere diverse, many cases revolved around the parent-child dyad,such as stepparents who sought custody of or access to theirstepchildren following divorce. Stepparents face considerableobstacles when they seek parental rights following divorce be-cause they must overcome biological parents’ rights, which havelong been protected by the constitution (e.g., Pierce v. Societyof Sisters, 1925).

Research has demonstrated that nonbiological caregivers canform relationships with children similar to those of biologicalparent-child dyads, which appears to validate the stepparents’requests. For example, as a caregiver and child spend more timewith one another, a secure attachment relationship more likelydevelops (Goossens & Van Ijzendoorn, 1990; Howes & Smith,1995). Similarly, it has been argued that level of attachmentshould be one of the primary determinants in selecting perma-nent homes for foster children (Hegar, 1993). Although closeemotional bonds are expected in parent-child relationships (es-pecially in the mother-child dyad), they are not limited to thisdyad, nor do they depend upon biological or family ties (Boos-Hersberger, 1998). In fact, children can and do form close emo-tional bonds in multiple relationships (Goossens & Van Ijzen-doorn; Kromelow, Harding, & Touris, 1990; Suess, Grossman,& Sroufe, 1992), including relationships with stepparents (Fine& Fine, 1992; Ganong & Coleman, 1987; Hobart, 1987). More-over, Bray and Kelly (1998) found that over time stepfamilymembers begin to think of themselves more as a nuclear family(i.e., a family consisting of a married couple and their biologicalchildren) than as a stepfamily.

Although lawmakers have been slow to recognize nontra-ditional family relationships (Morgan, 1996a), including stepre-

*I would like to thank Marilyn Coleman for her insightful feedback on earlier draftsof this article.

**Department of Human Development and Family Studies, University of Missouri–Columbia, 314 Gentry Hall, Columbia, MO 65211 (JHans@familyscholar.com).

Key Words: child support, custody, family law, stepfamilies, visitation.

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lationships (Fine & Fine, 1992; Mason, Fine, & Carnochan,2001), the burgeoning prevalence and complexity of stepfamilieshas created an upsurge in the amount of attention they receivefrom legislators and judges (Morgan, 1996b). As shown in theAppendix, most states now have legislation that gives third par-ties (and often stepparents specifically) the legal standing nec-essary to request custody or access (Mayoue, 1998; Morgan,1996b). Although a legal avenue has been created for steppar-ents, and the process of attaining a decision is for the most partclear, the criteria courts use to make decisions at each stage re-main ambiguous and largely left to each judge’s discretion (Dur-an-Aydintug & Ihinger-Tallman, 1995).

Herein lies the challenge for judges, stepparents, and divorcemediators: How and to what extent can (or should) rights beafforded to stepparents when a close and loving bond has formedbetween them and a child to whom they have no legal relation?This question comes to the forefront when remarriages end indivorce and stepparents desire an ongoing relationship with theirstepchildren. The difficulty is in honoring the psychological at-tachment that may exist between a stepparent and stepchild whilenot denying the biological parents’ constitutional right to thechild. Divorce mediators often approach this quandary by em-phasizing to parents that the ongoing involvement of a caringstepparent, an additional source of support and continuity in theirchildren’s lives, is beneficial for their children. Ultimately, step-parents have few options if the biological parents do not consentto the stepparents’ continued involvement. A similar conundrumwas addressed by the U.S. Supreme Court as it relates to grand-parent access in the state of Washington, and with caution themajority favored parents’ right to make decisions regarding therearing of their children provided the children are adequatelycared for (Troxel v. Granville, 2000). Nevertheless, stepparentsand children who coreside often develop genuine parent-child-like relationships. Thus, a legitimate argument might be raisedthat a stepparent can be a ‘‘parent,’’ and when circumstancesdictate should be granted the same legal protections given tobiological and adoptive parents.

Neither an overly permissive nor a rigidly restrictive ap-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 toanother necessitates that courts be granted enough latitude toconsider the unique facts of each case while providing somestandard upon which to base a decision. The ambiguity that sur-rounds this difficult issue may heighten both the confusion andanxiety of litigants involved in these cases, as well as create afalse sense of hope (or hopelessness) among them. The purposeof the first part of this article is to explain legal processes and

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judicial tendencies vis-a-vis stepparents who seek custody of oraccess to stepchildren following marital dissolution. In addition,stepparents’ obligations to provide child support for stepchildrenfollowing marital dissolution is examined. Next, policy recom-mendations related to stepparenting following divorce are de-scribed and critiqued. Finally, practical implications are offeredfor family professionals in the roles of marriage counselor, di-vorce mediator, and policy advocate.

Stepparent Custody

An adult with custody of a child is responsible for the child’s‘‘care, control, and maintenance’’ (Garner, 2000). Mayoue(1998) described a 3-step process that a stepparent must com-plete to gain postdivorce custody of a stepchild. The first step isto establish standing (i.e., the right to be heard before a court oflaw) to petition for custody, which varies from state to state.Then, the stepparent must overcome the legal preference givento biological and adoptive parents. Finally, evidence must bepresented that demonstrates the child’s best interest will beserved by awarding the stepparent custody. Each of these stepsare discussed below.

Standing to PetitionBiological and adoptive parents have a constitutional right

to direct the upbringing of their children (Ginsberg v. New York,1968; Prince v. Massachusetts, 1944; Stanley v. Illinois, 1972;Wisconsin v. Yoder, 1972), but stepparents also may be affordedrights to custody based on state statutes. As shown in the Ap-pendix, stepparents have the right to file for custody of step-children following divorce in approximately 60% of the 50 states(Mayoue, 1998). According to Boos-Hersberger (1998), the ob-stacles encountered in the other states revolve around: (a) theUniform Marriage and Divorce Act (UMDA, 1998) and (b) leg-islation that only permits courts to determine custody for ‘‘chil-dren of the marriage.’’

Eight states have adopted the UMDA third-party provisionthat only grants standing to stepparents when the child is not inthe physical custody of a biological or legal parent (UMDA §401, d[2], 1998). This approach emphasizes parental rights at theexpense of children’s best interest (Schlam, 2000), and in doingso prevents most stepparents in these eight states from gainingstanding.

The second hindrance concerns the wording of dissolutionpreceding statutes. Whether shortsighted or intentional, manystates limit the custody jurisdiction of courts to children of (i.e.,resulting from) the marriage being dissolved. Although a major-ity of states have yet to apply these ‘‘child of the marriage’’statutes to cases involving stepparents (Boos-Hersberger, 1998),the potential for courts to dismiss their requests based on a lackof jurisdiction is readily apparent. A New York court (JanetS.M.M. v. Commissioner of Social Services, 1993) did just thatwhen it determined that similar terminology (i.e., ‘‘child of theparties’’) in a New York statute was intended to mean a biolog-ical relationship and, therefore, did not grant standing to thestepparent. However, an Alaska court (Carter v. Brodrick, 1982)held that a stepchild is ‘‘of the marriage,’’ if the stepparent isfound to be in loco parentis, or intentionally acting with thestatus and obligations of a parent (Gribble v. Gribble, 1978).

A stepparent (or other third party) with an in loco parentisrelationship ‘‘stands in the place of a natural [sic] parent, andthe reciprocal rights, duties, and obligations of parent and child

subsist’’ (Mason & Mauldon, 1996, p. 18). Typically, this statusis reserved for situations where the noncustodial parent is not apart of the child’s life (Boos-Herberger, 1998; Levine, 1996; seealso Mahoney, 1994), such as when the noncustodial parent hasno contact with the child or is deceased. Hence, the stepparentliterally ‘‘stands in the place of’’ another parent. Nevertheless,there is no established procedure among the courts for determin-ing whether a stepparent-child relationship should be granted inloco parentis status—the decision is ultimately left to the judge’sdiscretion. Thus, it is difficult to predict how courts will interpretthe child of the marriage phrase.

Parental PreferenceSome courts have held that the welfare of a child is para-

mount to the biological and adoptive rights of parents (Buser,1987). Over 20 years ago, a New York court referred to themodern principle that ‘‘a child is a person, not a subperson overwhom the parent has an absolute possessory interest’’ (Bennettv. Jeffreys, 1976, p. 278), essentially meaning that a child’s rightto be protected by the law is independent of, and may evensupercede, parental rights (see Prince v. Massachusetts, 1944).Nevertheless, the law as a whole has been slow to abandon par-ent-focused legislation in favor of child-centered approaches incustody decisions. Most courts continue to emphasize biologicalor legal ties by presuming that a biological or adoptive parent isthe most suited to fulfill a child’s needs (Levine, 1996; Morgan,1996b). In fact, the Montana Supreme Court overturned a cus-tody decision in favor of a stepfather because the lower courtdid not have the ‘‘authority to deprive a natural [sic] parent ofhis or her constitutionally protected rights absent a finding ofabuse and neglect or dependency’’ (In re A.R.A., 1996, p. 392).Traditionally courts have been unwilling to intrude upon parentalrights without compelling reason such as potential harm to thechild or unfit parents (Developments in the Law, 1980).

Because most courts give preference to a biological parent,an extraordinary circumstance, such as the biological or adoptiveparent being unfit or not wanting custody, is generally a prereq-uisite to consideration of stepparent custody (Mayoue, 1998).However, because the ‘‘unfit’’ standard is so difficult to prove(Morgan, 1996b), it has been loosely interpreted (e.g., unsuit-able, detrimental) in some divorce cases. The willingness ofcourts to lax the standards in divorce proceedings may be attrib-utable to the fact that loss of custody does not totally terminatea parent’s rights, as is the case when a state removes childrenfrom a home because of ‘‘unfitness’’ (Mayoue; Stanley D. v.Deborah D., 1983).

In a case that exemplifies the ‘‘detrimental’’ interpretationof parental unfitness (In re Dunn, 1992), the court awarded per-manent custody to the stepmother after the custodial father died.The mother appealed, arguing that the law favors biological andadoptive parents over third parties unless the biological or adop-tive parent is shown to be unsuitable. The appeals court upheldthe decision of the lower court, stating that ‘‘if the unsuitabilityis based on detriment to the child, courts must measure suit-ability in terms of the harmful effect on the child, not in termsof society’s judgment of the parent’’ (p. 83). In this case, a pre-ponderance of evidence existed indicating that awarding custodyto the mother would be detrimental to the children. This wasbased primarily on evidence that the children accepted their step-mother, not their biological mother, as their mother figure andthat relocating the children would have ‘‘devastating’’ and ‘‘det-rimental’’ effects on their emotional stability.

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The ‘‘unsuitable’’ interpretation was invoked in the case ofa child with special needs (Marriage of Allen, 1981). Custodyof the child, deaf from birth, was awarded to the stepmother overthe biological father at the time of their divorce. Although thefather was not found to be unfit, a fundamental difference existedbetween him and the stepmother—his attitude toward the child’sspecial developmental needs, although concerned, was charac-terized by the court as essentially ‘‘apathetic and fatalistic.’’ Onthe other hand, the stepmother demonstrated an optimistic beliefin the child’s potential through her ‘‘dedication, devotion anddetermination to provide’’ (p. 19) the child with the special train-ing needed to prosper.

Although these cases demonstrate a child-focused approach,some scholars have cautioned against the undervaluing of pa-rental rights. For example, Morgan (1996b) has asserted that itis inappropriate for a court to believe that losing custody of achild is not as serious as a termination of parental rights. Further,she challenged its constitutional appropriateness on the basis ofa parent’s right ‘‘to the care, custody, and companionship ofone’s child’’ (p. 193). Thus, parental preference can be a difficultissue for the courts with no readily available solutions.

Child’s Best Interests StandardIf a stepparent has standing to petition the court and suc-

cessfully overcomes the parental preference, then the court willapply the best interests of the child standard to determine whoshould be the child’s primary custodian (Levine, 1996). There isno universally accepted understanding of how to determine whatis in the best interests of a child; the decision is left up to thestatutes and courts of each state. Thus, what is in the best inter-ests of a child is largely a matter of opinion and each judge hasdiscretionary latitude to interpret the standard as he or she deemsappropriate (Gregory, 1998). The indeterminacy and unpredict-ability of the best interests of the child standard has fueled wide-spread criticism (Principles, 2001; Schneider, 1991). For exam-ple, Mnookin (1975) questioned whether greater weight shouldbe given to a child’s short-term or long-term well-being. Amongthe many other charges against the best interests standard arethat the ambiguity provides incentive to engage in litigation(Burt, 1983; Elster, 1987) and that unchecked judicial discretionleaves too much room for decisions to be influenced by judges’personal preferences and prejudices (Schneider). Most jurisdic-tions have responded to the criticism by specifying criteria forcourts to use when making a best interest determination (Prin-ciples). As an example of the criteria commonly cited, theUMDA includes the wishes of the child; the wishes of the par-ents; the quality of the child’s relationship with each familymember; the child’s adjustment to home, school, and community;and the mental and physical health of the individuals involved(UMDA § 402, 1998).

Stepparent Access

Access (a.k.a., visitation) refers to a nonresident person’sright to spend time with a child. It is a simpler matter for thecourts than custody because ‘‘the reasons [for granting access]need not be so convincing as a custody case’’ (Commonwealthex rel. Williams v. Miller, 1978, p. 993). Although every statehas enacted third-party visitation statutes (Elrod, Spector, & At-kinson, 1999), the information in the Appendix shows that onlyabout half of them grant stepparents access rights, either directlyor as third parties (Mayoue, 1998). In the absence of a statute,

however, some courts have allowed stepparents to petition foraccess (Morgan, 1996b). Where stepparent access is considered,in general, courts determine whether to grant access privilegesaccording to the best interests of the child standard (Goldstein,1995; Mayoue), with parental rights playing a far lesser role thanin custody cases.

The in loco parentis doctrine influences the outcome of ac-cess cases in two ways. As with custody, several states preempta best interests ruling until standing is established based on theexistence of an in loco parentis relationship (Goldstein, 1995).Others use the in loco parentis doctrine as grounds to grant step-parents access where not expressly permitted by statutory law(Gribble v. Gribble, 1978; Spells v. Spells, 1977).

Despite the widespread use and adaptation of in loco par-entis, its use in stepparent access cases has not gone withoutcriticism. Goldstein (1995) argued that by requiring an in locoparentis relationship before access will be considered, the court’sinitial focus is diverted from the well-being of the child. More-over, it was suggested that granting access requests based solelyon the child’s best interest is more beneficial for the child. Gold-stein held this view because it would allow courts to ‘‘completelyexamine the child’s interests and respond accordingly, regardlessof the existence of a specific type of relationship between thestepparent and stepchild’’ (p. 165). This reasoning has been ech-oed by others as well (Fine, 1997; Fine & Fine, 1992; Mahoney,1994). Further, this argument appears to be supported by empir-ical research based on the nondiscriminate nature of close emo-tional bonds described earlier.

Support Obligations

In general, a stepparent is not obligated to provide childsupport (i.e., legally imposed financial maintenance) for a step-child after the marriage to the child’s legal parent ends. However,there are three situations that may beget a stepparent’s obligationto support a stepchild following divorce: (a) statutory obliga-tions; (b) an in loco parentis relationship between the stepparentand stepchild; and (c) a promise to support the stepchild (May-oue, 1998; Richards, 1994).

Statutory LawSeventeen states have ratified a wide assortment of laws that

hold stepparents responsible for the support of stepchildren dur-ing marriage (see Appendix). They range from Hawaii’s situa-tion-specific support statute:

A stepparent who acts in loco parentis is bound to provide,maintain, and support the stepparent’s stepchild during theresidence of the child with the stepparent if the legal parentsdesert the child or are unable to support the child, therebyreducing the child to destitute and necessitous circumstanc-es. (Hawaii Review Statutes, 1999)

to a much broader support statute, such as Missouri’s:

A stepparent shall support his or her stepchild to the sameextent that a natural [sic] or adoptive parent is required tosupport his or her child so long as the stepchild is living inthe same home as the stepparent. (Missouri Review Statutes,1999)

Nevertheless, the only state that even approaches mandatingstepparent support following divorce is North Dakota, where‘‘the stepparent is liable, to the extent of the stepparent’s ability,

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to support [stepchildren] during the marriage and so long there-after as they remain in the stepparent’s family’’ (italics added;North Dakota Century Code, 1999).

In general, however, state statutes do not impose a duty tosupport stepchildren on stepparents following divorce (Mayoue,1998; Morgan, 1996a), and courts have routinely upheld the no-tion that stepparents do not have such a duty. In some instancesthis finding has been based on statutory law that plainly statesa stepparent’s duty to support a child terminates upon divorce(e.g., Brinkerhoff v. Brinkerhoff, 1997). Other courts cite a lackof jurisdiction to impose a support obligation on a person whois not the biological or adoptive parent (e.g., Fern v. Fern, 1993).Regardless of the reasoning courts use to arrive at the decision,the absence of statutory guidelines is suggestive of the notionthat stepparents should not be burdened with a postdivorce sup-port obligation unless exceptional circumstances are present.

In Loco ParentisNo court has cited in loco parentis as the reason for impos-

ing support obligations on stepparents following divorce. How-ever, stepparents have been found to be relieved from postdis-solution support obligation in the absence of two common char-acteristics of stepparent-stepchild relationships as part of in locoparentis—intent to establish the relationship and financial re-sponsibility.

Intent to establish relationship. There must have been anintent to establish a nurturing parent-child-like relationship for acourt to find that an in loco parentis relationship exists (Boos-Hersberger, 1998; Mayoue, 1998; Morgan, 1996a). This is animportant prerequisite because otherwise stepparents may be dis-couraged from creating a warm family atmosphere for fear thatit would obligate them to pay support should the marriage endin divorce. Conversely, parents who were cold and indifferenttoward their stepchildren would be rewarded by not having topay child support following marital dissolution. This is clearlynot the message lawmakers want to send to stepparents, hencethe intent clause. As one court explained, a stepparent’s desireto take on parental responsibilities weighs heavily on a court’sdetermination because ‘‘a good Samaritan should not be saddledwith the legal obligations of another’’ (Niesen v. Niesen, 1968,p. 664).

Financial responsibility. In addition to intent, financial re-sponsibilities must have been met with no expectation of reim-bursement for a court to find that an in loco parentis relationshipexists (Boos-Hersberger, 1998; Mayoue, 1998; Morgan, 1996a).If reimbursement is expected, then it seems logical to concludethat the stepparent has not accepted the duties and obligationsof a parent and therefore would not be in loco parentis.

Interestingly, if there is no finding of in loco parentis, thena stepparent may be able to partially recover financial contri-butions to the child (Mayoue, 1998). Alaska is one of severalstates that do not impose support obligations on stepparents dur-ing the marriage. In Burgess v. Burgess (1985), an Alaska courtpresumed all support provided by the stepparent to be a gift.Alaska considers separate property acquired during a marriagesubject to division (Alaska Statutes, 1999); consequently, thecourt ruled that the stepparent’s financial ‘‘gifts’’ of support to-ward the stepchildren were part of the marital property to besplit.

Promise to SupportAn obligation to support a stepchild after divorce may arise

from either an explicit or implicit promise by the stepparent to

do so, which can be upheld through either an estoppel or writtencontract. An equitable estoppel prevents a person from denyingan obligation based on one’s own actions or statements to thecontrary and is based on the principle of fairness (Mahoney,1994). When used in the context of stepparent support obliga-tions, the equitable estoppel doctrine prevents a stepparent whohas been acting as a parent (e.g., in loco parentis) from denyingrights and obligations to a child in an attempt to escape payingchild support (Morgan, 1996a).

The equitable estoppel option has thus far been limited topotential financial detriment to the stepchild resulting from theloss of the noncustodial parent’s support brought about by thestepparent’s conduct (Mahoney, 1994). Wrongdoing on the partof a stepparent is a prerequisite because courts do not want todiscourage stepparents’ good faith support and involvement dur-ing a marriage. In Miller v. Miller (1984), the misconduct cri-terion was established on the basis of the stepparent’s interfer-ence with the relationship between the children and their non-residential legal parent. The stepfather had ‘‘strenuously op-posed’’ the biological father’s attempts to form a relationshipwith and pay child support for the children. The court ruled thatthe biological father should be considered the primary source ofsupport; however, because the children’s contact with the bio-logical father had ceased because of the stepfather’s insistence,the stepfather was estopped from denying a support obligation.

Policy Recommendations

For stepparents who have established close and loving bondswith their stepchildren, the prospect of being denied access rightsfollowing a divorce can be frightening. Although family law haslargely neglected stepparents (Mason et al., 2001), great legalstrides have been made since the late 1970s toward securingavenues by which these and other third-party relationships canbe maintained when appropriate (Gregory, 1999). Nevertheless,the outcome of any particular case is difficult to predict becauseof the high degree of judicial latitude, which is a product oflegislative ambiguity.

Although there are advantages and disadvantages to bothstrict guidelines and judicial discretion (Schneider, 1991), nu-merous proposals have set forth criteria by which a court mightdetermine the juxtaposition of a stepparent-child relationshipwith the child’s best interests. For example, Mason and Mauldon(1996) proposed a new stepparent status that would give rec-ognition to the financial and emotional role stepparents oftenplay in the lives of stepchildren. According to their proposal,stepparents would be placed in one of two categories: those whoact as de facto parents and those who do not. The de facto statuswould be reserved for ‘‘those stepparents legally married to anatural [sic] parent who primarily reside with their stepchildren,or who provide at least 50% of the stepchild’s financial support’’(p. 23). Those who fail to meet these de facto criteria wouldessentially be nonexistent in a legal sense. The de facto step-parents would garner the same rights and responsibilities of alegal parent during the marriage and to some extent—perhapsbased on the length of the marriage—would retain this positionfollowing divorce or the death of the stepparent’s spouse (i.e.,the ‘‘natural’’ parent).

The ideas laid forth in Mason and Mauldon’s proposal war-rant consideration. However, although the statutory recognitionof a de facto status based on the proposed criteria would be animprovement on current policy, some potentially harmful limi-

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tations are introduced as well. For example, the dichotomouscategorization of stepparents (i.e., de facto or nothing) is prob-ably not an accurate way to think of stepparent-stepchild rela-tionships; this conceptualization of step relations is not indicativeof their inherent diversity and complexity. This dilemma couldbe resolved by measuring the de facto relation on a continuumrather than in absolute terms, with corresponding degrees of pa-rental rights and responsibilities.

One such proposal suggested that four factors, each on acontinuum, be taken into consideration when courts are confront-ed with stepparent access: the length of time the stepparent andstepchild have lived together, the child’s age during the relation-ship, the noncustodial biological or adoptive parent’s relationshipwith the child, and the relationship between the stepparent andthe child’s custodial parent (McCormick, 1983). Although Mc-Cormick proposed these factors on the basis of ‘‘commonsense,’’ Gamache (1997) arrived at a similar conclusion after areview of empirical findings in the stepfamily literature.

The American Law Institute (ALI) also has attempted toaddress the need for a pluralistic conceptualization of parent-hood. In the Principles of the Law of Family Dissolution (2001),the ALI recognizes that children not living in a nuclear familymay have more than two parental figures (Bartlett, 1984). ThePrinciples propose three levels of parental status: ‘‘legal parent,’’‘‘parent by estoppel,’’ and ‘‘de facto parent.’’ A legal parentfollows the traditional legal definition of a parent (Ramsey,2001), usually referring to biological or adoptive parents.

The Principles define a parent by estoppel somewhat dif-ferently than was described earlier. Four routes are provided bywhich the status of a parent by estoppel can be achieved: (a) anyindividual liable for child support, (b) living with a child for atleast 2 years who was believed in good faith to be one’s biolog-ical offspring, (c) residing with a child from birth under a co-parenting agreement, and (d) living with a child for 2 years whileacting as, and accepting the responsibilities of, a parent (Prin-ciples, 2001). This last method of gaining recognition as a parentby estoppel clearly has potential for residential stepparents butrequires the agreement of both legal parents (Ramsey, 2001).

The third level of parental status provided for in the Prin-ciples, the de facto parent, is also promising for stepparents inthat it only requires either the implicit or explicit consent of onelegal parent. Unlike the parent by estoppel, a de facto parentwould generally not receive primary custody of a child, but heor she could be awarded a lesser degree of parental responsibility(e.g., regular access; Principles, 2001). To achieve the de factostatus, a person must have resided with a child both for a periodof 2 years and for a significant period and assumed at least halfof the caretaking functions required to raise the child. Providedthe 2-year minimum is met, whether the period of coresidencewas ‘‘significant’’ depends on several factors such as the child’sage and the intensity of the relationship (Ramsey, 2001).

The Principles also note widespread dissatisfaction with theambiguity of the best interest standard and attempt to focus itsscope. The Principles do not make an a priori assumption thata particular parenting arrangement is optimal (e.g., joint custody,sole custody for the primary caretaker). Rather, they emphasizethat unless parents agree on an alternative postdivorce parentingarrangement or other extenuating circumstances exist (e.g.,abuse, lack of proximity among the parents), children’s best in-terests are served through the continuation of predivorce care-giving patterns (Woodhouse, 1999). The Principles’ focus oncontinuity for determining children’s best interests is an impor-

tant one that judges and legislators would do well to adopt; theimportance of continuity in children’s lives following divorce iswell-documented in the literature (Amato, 2000). In addition,many stepparents who seek parenting time following divorcewould potentially benefit from this perspective.

In general, the Principles comprise a set of sound, well-reasoned guidelines for family law that, if adopted, will enablecourts to better meet the diverse needs of families. However, thePrinciples are not without flaw. The parenthood provisions, andthe criteria for parents by estoppel in particular, are problematicin a couple of ways.

The first criterion for becoming a parent by estoppel (anyindividual who is liable for child support), is redundant and es-tablishes a potentially undesirable precedent. Presumably, a step-parent would not be held responsible for child support unless arelationship existed that in itself would warrant parental accessrights. Supposing a scenario was to occur where a stepparent isgranted parent by estoppel status based solely on a support ob-ligation, access to the child would essentially become a com-modity either bought by stepparent or sold by the parent (de-pending on who sought the support obligation). This is not con-sistent with the intentions of the Principles, nor does it reflectsociety’s current conceptualization of childhood (Woodhouse,1999), and therefore legislators and courts that consider adoptingthe Principles should exclude this criterion.

Another peculiar feature of the parent by estoppel criteria isthe 2-year minimum coresidence period before third parties be-come eligible for parental rights. It is unclear how or why theALI settled on 2 years as being a crucial threshold for gainingthird-party parental rights. The establishment of a minimum co-residency period may have arisen out of practical necessity toreduce case overload in the court system. If this is the intent,then a 2-year requirement seems reasonable because in most cas-es stepparents with relationships shorter in duration are unlikelyto gain parental access rights anyway. However, this does notexplain why the 2-year requirement is omitted from the thirdcriterion for parent by estoppel, which grants status to anyonewho has lived with a child since birth under a coparenting agree-ment. Although the 2-year standard appears again in the de factoparenthood criteria, the additional clause that requires a ‘‘signif-icant’’ period based on the child’s age and the nature of therelationship is an important one; it is reminiscent of McCor-mick’s (1983) continuum proposal described earlier.

Numerous thought-provoking ideas for extending legal sta-tus to appropriate postdissolution steprelationships have beenformulated. These proposals tend to recognize that extensive lim-itations on the court’s ability to consider the unique attributes ofeach steprelationship on a case-by-case basis could prove detri-mental to all parties involved. The paramount concern in thesecases must be the child’s best interests, which cannot be servedby imposing rigid, all-encompassing rules that serve as ‘‘for-mulas for success.’’ Instead, general guidelines that are sensitiveto both the degree and uniqueness of each stepparent-child re-lationship, such as McCormick’s (1983) four continuums or thePrinciples’ (2001) extensive reconceptualization of parenthood,appear to provide an appropriate balance of rules and discretion.An optimal approach to stepparent rights and responsibilities fol-lowing divorce would integrate portions of both proposals. Theguidelines they endorse would remove a great deal of the un-certainty currently surrounding postdivorce stepparent-stepchildrelationships, while allowing for judicial discretion.

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Practical Implications

The ambiguous legal status afforded stepparents who divor-ce presents issues that family practitioners should be prepared todeal with when working with stepfamilies at all stages of step-family development. For example, a premarital counselor work-ing with a potential stepfamily might encourage the couple todiscuss the role expectations and financial obligations each hasin mind for the steprelationship. The counselor also might in-clude the nonremarrying parent in the discussion or at least en-courage the couple to consider that parent’s role as well. Also,it could be suggested that the biological parent develop a will toindicate the role that he or she would like for the stepparent toplay in the child’s life in the event of death. Although not legallybinding, this document would ensure that a judge and survivingfamily members know the deceased parent’s wishes, which mayweigh into guardianship decisions.

Ratner (2001) has proposed that mediation become the fo-rum of choice for families disputing third-party involvement withchildren. Divorce mediators can play an especially important rolein facilitating discussion among remarried parents who are di-vorcing. The legal system typically does not interfere when par-ents are able to reach an agreed upon parenting arrangement; ifa parenting agreement is reached in mediation, then the legalprotocol described above will become irrelevant. However, whena remarriage ends in divorce, if both the nonresidential biologicalparent and a stepparent wish to be involved in the child’s life(i.e., three parents are seeking parenting time), then arriving ata parenting arrangement suitable to all three parents and in thebest interest of the child can become especially difficult. Evenif the residential parent and the stepparent reach an agreementregarding parenting time, the nonresident biological parent maynot concur. Therefore, a mediator may want to include all threeparents in mediation sessions that deal with the child.

Divorce mediators, lawyers, and other professionals whowork with stepfamilies during dissolution should encourage par-ents to consider the child’s perspective during post-stepfamilyparenting negotiations. For example, although a remarriage thatlasted 5 years may not seem long to the parents, it is virtually alifetime to a 7-year-old child. A stepparent may be a child’sprimary father or mother figure, especially if the nonresidentparent does not live nearby or is seldom in contact. On the otherhand, a stepparent and child may live together for many yearsand have a distant relationship. Whatever the case, parentsshould be dissuaded from imposing their own wishes on a childwhen those desires are insensitive to the child’s needs.

Finally, professionals who work with families can play anactive role in shaping stepfamily legislation and policy. Laws canbe thought of as a reflection of their constituents’ beliefs andexpectations. Not surprisingly given the lack of norms associatedwith remarriages and stepfamilies, especially those ending in di-vorce or death, current legal policy does not adequately address—or in many cases even recognize—the many issues that arise. Forexample, in addition to the lack of legislative guidance regardingcustody, access, and support following a divorce, stepchildren arenot included in inheritance laws when a stepparent dies intestate(i.e., without a will), regardless of the length of the steprelation-ship or dependence of the child on the stepparent’s financial sup-port. Stepparents often are important contributors to a child’s de-velopment, both emotionally and financially, but they have onlybegun to receive attention from lawmakers in the last few decades.

Mason et al. (2001) have suggested that social scientists can

be especially influential in the areas of law and policy surround-ing divorce and remarriage, particularly with regard to postdi-vorce parenting arrangements and the involvement of more thantwo parents in childrearing. The active involvement of familyscholars in policymaking activities will enhance the quality ofstepparent legislation by ensuring that policies are grounded inempirical evidence. Thus, professionals who work with stepfam-ilies should couch their experiences, impressions, and researchfindings in terms of policy implications to guide future legisla-tion. In addition to scholarly publishing, opportunities exist foracademics to participate in policy development, advocacy, andevaluation (see Monroe, 1991, 1995).

Conclusion

Stepparents’ postdissolution rights and obligations differfrom state to state, and some of the variations in statutes andcase law were described. Three proposals to further define step-parents’ legal position following divorce were assessed, theirproblems and prospects were described, and recommendationsfor improving them were made. Finally, suggestions were madefor professionals who work with and study stepfamilies.

Increasingly, steprelationships have come to be viewed ashaving potentially long-lasting bonds that endure beyond andapart from the remarriage that created them. It is this potential,along with the increasing prevalence of remarriage dissolution,that has spurred discussion regarding stepparents’ rights and ob-ligations to stepchildren following divorce. Although much am-biguity remains, this formative period in stepfamily law has pos-itively affirmed the importance of stepparent-child relationshipsin many ways, though tempered by sensitivity toward biologicaland adoptive parents’ rights.

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2002, Vol. 51, No. 4 307

Spec

ialCollec

tion

Appendix

States With Statutes Relating to Stepparent Rights and Obligations

State UMDA Custody Access

SupportObligation

DuringMarriage

AlabamaAlaskaArizona X

X1

X1

X1

ArkansasCaliforniaColoradoConnecticut

XX1

X1

X1

X

X1

DelawareFloridaGeorgiaHawaiiIdahoIllinois X

X1

X1

X1

X1

X

X

X

IndianaIowaKansasKentuckyLouisianaMaine

X X1

X1

X1

X

X1

X1

X

X

XMarylandMassachusettsMichiganMinnesotaMississippiMissouriMontanaNebraskaNevada

X

XX

X1

X1

X1

X1

X1

X1

X1

X1

X1

X1

X

X1

XXXX

New HampshireNew JerseyNew MexicoNew YorkNorth CarolinaNorth DakotaOhioOklahomaOregon

X1

X1

X1

X1

X1

X1

X

X1

XXX1

X

XXX

XX

PennsylvaniaRhode IslandSouth CarolinaSouth DakotaTennesseeTexas

X1

X1

X1

X1

XX1

UtahVermontVirginiaWashingtonWest VirginiaWisconsinWyoming

XX1

X1

XX1

X1

X

XX

X

Note: 1 5 Third-party statute. UMDA 5 Uniform Marriage and Divorce Act.

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