With the Growing Number of Stepchildren Living in Married Couple Families, However, Comes

With the growing number of stepchildren living in married couple families, however, comes the growing number of statutes and cases concerning the rights and responsibilities of stepparents to their stepchildren. Quite importantly, the law is now beginning to recognize that severing the psychological-parent/child relationship can be just as damaging as severing the biological parent/child relationship. Perhaps the most important work in this area is being done by the Family Law Section of the American Bar Association, which in 1987 began work on the Model Act Establishing the Rights and Duties of Stepparents. See Joel D. Tenenbaum, Legislation for Stepfamilies - The Family Law Section Standing Committee Report, 25 Fam. L.Q. 137, 140 (1991) (draft proposed Model Act). See also Margaret M. Mahoney, Stepfamilies and the Law (1994); David L. Chambers, Stepparents, Biologic Parents, and the Law's Perception of the Family, in Divorce Reform at the Crossroads 102 (Stephen D. Sugarman and Herma Hill Kay, eds. 1990); Marcy Goldstein, The Rights and Obligations of Stepparents Desiring Visitation with Stepchildren: A Proposal for Change, 12 Probate L.J. 145 (1995); Robert J. Levy, Rights and Responsibilities for Extended Family Members, 27 Fam. L.Q. 191 (1993); S. Silverman, Stepparent Visitation Rights: Toward the Best Interests of the Child, 30 Fam. L.J. 943 (1991); Sarah H. Ramsey & Judith M. Masson, Stepparent Support of Stepchildren: A Comprehensive Analysis of Policies and Problems in the American and English Experience, 36 Syr. L. Rev. 659 (1985); Katherine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for More Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879 (1984).

This article will survey the statutory and case law of the fifty states and the District of Columbia regarding the duty of stepparents to support their stepchildren, both during the marriage and after the marriage.

II. THE DUTY OF A STEPPARENT TO SUPPORT A STEPCHILD DURING THE MARRIAGE TO THE CUSTODIAL PARENT (INCLUDING THE COHABITANT'S DUTY OF SUPPORT TO THE OTHER COHABITANT'S CHILD DURING THE PERIOD OF COHABITATION)

A. The Common Law Duty of a Stepparent to Support a Stepchild

Under the common law, a stepparent has no duty to financially support a stepchild during the marriage to the child's natural parent merely by reason of the marriage. Stated otherwise, the relationship of stepparent and stepchild does not, in and of itself, impose any obligation of support. Grubb v. Sterrett, 315 F. Supp. 990 (D. Ind.), affirmed, 400 U.S. 922 (1970); In re Marriage of Dawley, 17 Cal. 3d 342, 131 Cal. Rptr. 3, 551 P.2d 323 (1976); Zeller v. Zeller, 195 Kan. 452, 407 P.2d 478 (1965); Brummit v. Kentucky, 357 S.W.2d 37 (Ky. 1962); Youmans v. Citizens Insurance Co. of America, 89 Mich. App. 387, 280 N.W.2d 539 (1979); Meagher v. Hennepin County Welfare Board, 300 Minn. 446, 221 N.W.2d 140 (1974); Hawkins v. Thompson, 210 S.W.2d 747 (Mo. Ct. App. 1948); Kaiser v. Kaiser, 93 Misc. 2d 36, 402 N.Y.S.2d 171 (1978); Green v. Department of Institutions and Agencies, 109 N.J. Super. 462, 263 A.2d 796 (App. Div. 1970); State v. White, 116 Ohio App. 522, 189 N.E.2d 160 (1962); Stack v. Stack, 141 Pa. Super. 147, 15 A.2d 76 (1940); Niesen v. Niesen, 38 Wis. 2d 599, 157 N.W.2d 660 (1968). See generally Margaret M. Mahoney, Support and Custody Aspects of the Stepparent-Child Relationship, 70 Cornell L. Rev. 38 (1984); 59 Am. Jur. 2d Parent and Child § 78 (1987).

A mother and father owe a duty to support their children, and this duty is not displaced by the custodial parent's marriage to a new spouse, the "stepparent," or by the fact that the parent may be cohabitating with another person. E.g., Utah Code Ann. § 78-45-4.2 (1992) (the duty of a stepparent to support a stepchild does not relieve the natural parent of his or her duty of support). See DeTavis v. Aragon, 104 N.M. 793, 727 P.2d 558 (1986); MonroeCounty ex rel. Palermo v. Palermo, 192 A.D.2d 1114, 596 N.Y.S.2d 252 (1993); Stack v. Stack, 141 Pa. Super. 147, 15 A.2d 76 (1940); Niesen v. Niesen, 38 Wis. 2d 599, 157 N.W.2d 660 (1968). The natural parents owe the child the primary responsibility of support, and stepparets' liability for support can only be secondary. E.g., Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445 (1994); Brandriet v. Larsen, 442 N.W.2f 455 (N.D. 1989).

A stepparent is obligated to support a stepchild during the marriage where (1) there is a statute imposing such a duty, or (2) the stepparent undertakes to act in loco parentis to the child.

B. Statutory Duty of a Stepparent to Support a Stepchild

Twenty states now have statutes imposing a duty on stepparents to support their stepchildren:

(1) Del. Code Ann. tit. 13, § 501(b) (1994) (stepparent liable for support of stepchild during marriage);

(2) Haw. Rev. Stat. § 577-4 (1993) (stepparent liable for support of stepchild during marriage);

(3) Iowa Code Ann. §§ 252A.2(3) (Supp. 1996) (including stepchild in definition of children to whom a duty of support is owed);

(4) Ky. Rev. Stat. Ann. § 205.310 (1995) (stepparent has duty to support stepchild during marriage);

(5) Me. Rev. Stat. Ann. tit. 19, § 752(6) (Supp. 1995) (support may be ordered against third party where such party takes custody after divorce after showing of parental unfitness);

(6) Mo. Ann. Stat. § 568.040 (Supp. 1996) (criminal nonsupport statute applies equally to parents and stepparents);

(7) Mont. Code Ann. § 40-6-217 (1995) (if stepparent receives stepchild into family and supports him or her, stepparent is presumed to do so as a parent);

(8) Neb. Rev. Stat. § 28-706 (1995) (criminal nonsupport statute applies to stepparents);

(9) Nev. Rev. Stat. Ann. § 62.044 (1996) (stepparent liable to same extent as parent for neglect and dependency of child);

(10) N.H. Rev. Stat. Ann. §§ 546-A:1, -A:2 (1974) (stepparent owes duty of support to stepchild during marriage);

(11) N.J. Stat. Ann. § 30:4C-2 (Supp. 1995) (includes as child under neglect and dependency proceedings a stepchild);

(12) N.Y. Fam. Ct. Act § 415 (1983); N.Y. Soc. Serv. Law § 101 (1992) (stepparent liable for support of stepchild to prevent the same from becoming a public charge);

(13) N.C. Gen. Stat. § 50-13.4 (1995) (any person standing in loco parentis to child has duty of support);

(14) N.D. Cent. Code § 14-09-09 (1991) (extending stepparent support duty during the marriage and so long thereafter as the stepchildren remain in the stepparent's family);

(15) Okla. Stat. Ann. tit. 10, § 15 (1987) (stepparent has duty of support to stepchild);

(16) Or. Rev. Stat. § 109.053 (1990) (stepparent has duty of support to stepchild);

(17) S.D. Codified Laws Ann. § 25-7-8 (1992) (a stepparent shall maintain his spouse's children born prior to the marriage);

(18) Utah Code Ann. § 78-45-4.1 (1992) (imposes support duty on stepparent that terminates on divorce);

(19) Vt. Stat. Ann. tit. 15, § 296 (1989) (stepparent has duty of support of stepchild);

(20) Wash. Rev. Code Ann. § 26.16.205 (Supp. 1996) (imposes duty of support on stepparent which shall cease on termination of relationship between husband and wife).

These statutes have withstood a variety of attacks, constitutional and otherwise. E.g., Openshaw v. Openshaw, 639 P.2d 177 (Utah 1981) (father entitled to reduction of child support for natural child based on his new obligation to support his stepchild); Washington Statewide Organization of Stepparents v. Smith, 85 Wash. 2d 564, 536 P.2d 1202 (1975) (statute is not a violation of equal protection by imposing on stepparents the duty of support while not imposing on cohabitants the same duty, not does statute impair obligation of marriage contracts). See generally Patricia Jean Lamkin, Annotation, Validity, Construction, and Application of Statute Imposing Upon Stepparent Obligation to Support Child, 75 A.L.R.3d 1129 (1977).

Where a statute provides that a stepparent has a duty to support a stepchild, the statute is essentially no more than a codification of the doctrine of in loco parentis doctrine. The in loco parentis doctrine states that if a stepparent takes stepchildren into his or her family or under his or her care in such a way that he or she places himself or herself in loco parentis, then the stepparent assumes an obligation to support the stepchildren. See Adele Stuart Meriam, The Stepfather in the Family (1940) (tracing the doctrine of in loco parentis in the United States to Williams v. Hutchinson, 5 Barb. 122 (N.Y. App. Div. 1849)). Thus, the codification of the in loco parentis doctrine into state legislation has not expanded the support rights of stepchildren as defined under the common law.

C. The Doctrine of in Loco Parentis

In the absence of a statute, under the common law, marriage alone does not obligate a stepparent to support his or her stepchild. Where, however, the stepparent acts in loco parentis to a stepchild, then the stepparent assumes an obligation to support the stepchild. Stated succinctly,

The universal rule is that a stepfather, as such, is not under obligation to support the stepchildren, but that, if he takes the children into his family or under his care in such a way that he places himself in loco parentis, he assumes an obligation to support them, and acquires a correlative right to their services.

Harris v. Lyon, 16 Ariz. 1, 140 P. 825 (1914). Accord State v. Smith, 485 S.W.2d 461 (Mo. Ct. App. 1972) (position stepparent assumes for himself determines if he stands in loco parentis, and if he voluntarily recieves child into family and treats it as a member thereof, he may be said to be standing in place of natural parent); Schneider v. Schneider, 25 N.J. Misc. 180, 52 A.2d 564 (Ch. Div. 1947) (if stepfather voluntarily accepts into his family a child of his wife by a former husband and assumes the obligations of a parent, such obligation continues as long as he permits the child to be in his home). See also In re Teddy's Estate, 214 Cal. App. 2d 113, 29 Cal. Rptr. 402 (1963); Ladd v. Welfare Commissioner, 3 Conn. Cir. 504, 217 A.2d 490 (1965); Kelley v. Iowa Dep't of Social Services, 197 N.W.2d 192 (Iowa 1972); Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445 (1994); Palmer v. Harrold, 101 Ohio App. 3d 732, 656 N.E.2d 708 (1995) (stepparent is liable for support of stepchild during marriage to natural parent under doctrine of in loco parentis); Drescher v. Morgan, 251 S.W.2d 173 (Tex. Civ. App. 1952).

As with all other equitable doctrines, the creation of an in loco parentis relationship depends on the facts of the case. Generally, there must be an intent by the stepparent to create the status of in loco parentis. Dodd v. United States, 76 F. Supp. 991 (D. Ark. 1948); Jackson v. Jackson, 278 A.2d 114 (D.C. 1971); Rutkowski v. Wasko, 286 A.D. 327, 143 N.Y.S.2d 1 (1955) (assumption of parental relationship by stepparent is largely question of intention which should not lightly or hastily be inferred); Appeal of Fowler, 130 Vt. 176, 288 A.2d 463 (1972); State ex rel. Gilroy v. Superior Court for King County, 37 Wash. 2d 926, 226 P.2d 882 (1951) (relationship of in loco parentis becomes established only when a person intends to assume toward the child the statue of parent). Most often, stepparents establish de facto in loco parentis relationships with their stepchildren during the course of the marriage of the child's custodial parent by residing in the same household and treating the stepchild as a natural child. Treating a stepchild as one's own includes taking responsibility for the child's care, education, and development, including contributing to the child's support without the expectation of financial compensation. E.g., Deal v. Deal, 545 So. 2d 780 (Ala. Civ. App. 1989); Brummitt v. Commonwealth, 357 S.W.2d 37 (Ky. 1962); Palmer v. Harrold, 101 Ohio App. 3d 732, 656 N.E.2d 708 (1995); In re Custody of H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995). Quite importantly, the presence or absence of the noncustodial natural parent is not a critical factor in determining whether a stepparent stands in the place of a parent.

For obvious reasons, it may be difficult for a stepparent to prove the intention not to stand in loco parentis to a stepchild when they reside in the same household. When the stepparent and stepchild share a household, the child naturally benefits from the stepparent's financial contributions to the household, and this benefit creates a presumption that the stepparent intends to assume financial responsibility for the child. Where, however, the stepparent unequivocally expresses a contrary intent, then the presumption may be rebutted. E.g., In re Besondy, 20 N.W. 366 (Minn. 1884) (express agreement between mother and her new husband that child would be supported by government benefits paid to her son, based on the child's father's military service, negated presumption of in loco parentis status).

Because the establishment of an in loco parentis relationship is dependent on the voluntary assumption of responsibility by the stepparent, the relationship is terminable at the will of the stepparent. Ex parte Lipscomb, 660 So. 2d 991 (Ala. 1994); Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 337 (1953); Jackson v. Jackson, 278 A.2d 114 (D.C. 1971); Cavanaugh v. deBaudiniere, 1 Neb. App. 204, 493 N.W.2d 197 (1992); Falzo v. Falzo, 84 N.J. Super. 343, 202 A.2d 192 (App. Div. 1964).

The relationship can also be terminated by the actions of the stepchild. For example, in In re Marriage of Farrell, 67 Wash. App. 361, 835 P.2d 267 (1992), the court held that the in loco parentis relationship between the stepfather and stepdaughter was terminated when the stepdaughter removed herself from her stepfather's home. The court held that the in loco parentis relationship is voluntary and can be terminated at will, the daughter's actions had terminated the relationship.

Quite interestingly, because the law imposes no duty on a stepparent to support a stepchild outside the in loco parentis relationship, if an in loco parentis relationship has not been established during the marriage, a stepparent may argue on divorce that any support actually provided to a stepchild during the marriage constitutes a "drain" on marital resources, and that the stepparent is therefore entitled to a larger share of the equitable distribution award. For example, in Burgess v. Burgess, 710 P.2d 417 (Alaska 1985), the Alaska Supreme Court permitted the stepfather to receive a credit in the property distribution for the contributions he made during the marriage toward the support of his stepchild. See also Cox v. Cox, 882 P.2d 909 (Alaska 1994) (error not to consider husband's support for wife's children by prior marriage as a one relevant factor in dividing marital property). Cf. In re Marriage of Peterson, 211 Mont. 118, 683 P.2d 1304 (1984) (Montana Supreme Court refused to authorize an increase in stepfather's share of assets at divorce to compensate him for the consumption of marital income during the marriage, where in loco parentis relationship was established).

Note also the expenses of supporting a stepchild in the future are one relevant factor in dividing marital property, because those expenses have an undeniable effect upon the future financial condition of the parties. See Braun v. Braun, 532 N.W.2d 367 (N.D. 1995).

III. THE DUTY OF A STEPPARENT TO SUPPORT A STEPCHILD AFTER THE MARRIAGE TO THE CUSTODIAL PARENT HAS CEASED (INCLUDING THE COHABITANT'S DUTY OF SUPPORT TO THE OTHER COHABITANT'S CHILD AFTER THE PERIOD OF COHABITATION).

A. Statutory Provisions

As noted above, where a statute provides that a stepparent has a duty to support a stepchild, the statute is essentially no more than a codification of the in loco parentis doctrine. No statute or interpretation of the doctrine of in loco parentis imposes a duty of support on a stepparent after divorce where the stepparent and stepchildren are no longer living together as a family and the stepparent is not acting as a parent. For example, the North Dakota statute extends the stepparent's duty of support after divorce, but only so long as the stepchildren remain in the stepparent's family. Thus, the cases have universally held that once the parent and stepparent divorce, there is no duty of a stepparent to support a stepchild, unless an obligation to support a stepchild is established by either estoppel or contract. See U.S. v. Floyd, 81 F. 3d 1517 (10th Cir. 1996) (in loco parentis relationship is by nature temporary, and ends when the person standing in the shoes of the parent ceases to fulfill his or her responsibility of care); Deal v. Deal, 545 So. 2d 780 (Ala. Civ. App. 1989); Fenn v. Fenn, 174 Ariz. 84, 847 P.2d 129 (Ct. App. 1993) (no duty of stepparent to support stepchild after divorce, even though stepparent had begun adoption proceedings); Bryan v. Bryan, 132 Ariz. 353, 645 P.2d 1267 (Ct. App. 1982) (stepparents have no postdissolution duty to support their stepchildren); In re Krystle D., 30 Cal. App. 4th 1778, 37 Cal. Rptr. 2d 132 (1994) (in loco parentis relationship does not continue after dissolution); Swain v. Swain, 250 Cal. App. 2d 1, 58 Cal. Rptr. 83 (1967); K.A.T. v. C.A.B., 645 A.2d 570 (D.C. 1994); Portuondo v. Portuondo, 570 So. 2d 1338 (Fla. DCA 1990); Burney v. Burney, 233 Ga. 216, 210 S.W.2d 727 (1974); In re Petition of Ash, 507 N.W.2d 400 (Iowa 1993) (there is no duty of support by stepparent); In re Marriage of Bethards, 526 N.W.2d 871 (Iowa Ct. App. 1994) (the duty of support under doctrine of in loco parentis does not continue past dissolution of marriage); Tanielian v. Brooks, 202 Mich. App. 304, 508 N.W.2d 189 (1993) (no duty to support stepchild after divorce); Berisford v. Berisford, 322 N.W.2d 742 (Minn. 1982); Levesque v. Levesque, 773 S.W.2d 220 (Mo. Ct. App. 1989) (obligation of support to stepchild ceases on divorce); Quintela v. Quintela, 4 Neb. App. 396, 544 N.W.2d 111 (1996) (divorce terminates the in loco parentis relationship); Ruben v. Ruben, 123 N.H. 358, 461 A.2d 733, 735 (1983) (obligation to support stepchildren under statute depends on existence of valid marriage and ceases on entry of divorce); Klipstein v. Zalewski, 230 N.J. Super. 567, 553 A.2d 1384 (1988) (in absence of equitable estoppel, there is no duty of stepparent to support stepchild); Chiarello v. Chiarello, 51 A.D.2d 1089, 381 N.Y.S.2d 156 (1976) (after divorce, relationship as stepparent was terminated, and there was no duty to support former wife's children); Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445 (1994) (there is no duty of stepparent to support stepchild after divorce); Drawbaugh v. Drawbaugh, 436 Pa. Super. 57, 647 A.2d 240 (1994) (no support obligation after divorce by stepparent to stepchild); Garman v. Garman, 435 Pa. Super. 590, 646 A.2d 1251 (1994); Concerned Parents of Stepchildren v. Mitchell, 645 P.2d 629 (Utah 1982). See generally David B. Sweet, Annotation, Stepparent's Postdivorce Duty to Support Stepchild, 44 A.L.R.4th 520 (1986). But see In re Marriage of Bonnette, 492 N.W.2d 717 (Iowa Ct. App. 1992) (court may order stepparent to support former stepchild after divorce in order to maintain stepchild's standard of living which stepparent established).

Indeed, so strong is the principle that a stepparent owes no duty to support a stepchild after divorce that courts have even refused to consider the custodial parent's child support expenses in setting the amount of alimony owed by the former spouse/stepparent to the custodial parent following divorce, even though the "financial need" of the obligee spouse is almost always a support factor. The courts have reasoned that any reference to the stepchild's future expenses in the award of alimony would, in effect, create an unacceptable postdivorce stepparent support duty. Needel v. Needel, 15 Ariz. App. 471, 489 P.2d 729 (1971); Wood v. Wood, 166 Ga. 519, 143 S.E. 770 (1928); Harrison v. Harrison, 503 So. 2d 116 (La. Ct. App. 1987). But see Commonwealth ex rel. Bulson v. Bulson, 419 A.2d 1327 (1980) (alimony payments to custodial mother should reflect the needs of her child because former husband/stepfather had assumed child support duty).

Similarly, a court cannot award one spouse a greater share of the marital estate to help that spouse care for a child that is not of the parties, but is a stepchild of the former spouse. As stated in the case of Bledsoe v. Bledsoe, 294 Md. 183, 448 A.2d 353, 359 (1982):

It would be inconsistent to find that a spouse has no legal duty to support stepchildren, that the ordinary acceptation of the word child excludes stepchildren, and then torture the statue to find an intent to expel a spouse from his or her home based on an obligation to protect the children of the other spouse.

But cf. Cox v. Cox, 882 P.2d 909 (Alaska 1994) (error not to consider husband's support for wife's children by prior marriage as a one relevant factor in dividing marital property).

B. The Doctrine of Equitable Estoppel

Equitable estoppel is probably the most powerful tool used to impose on a stepparent a post-divorce duty to support a stepchild. See Margaret M. Mahoney, Stepfamilies and the Law § 2-VI at 31-38 (1994); Wendy Simpson, The Power of Positive Parenting: Equitable Estoppel in Paternity Cases, 4 Divorce Litigation 95 (May 1992).

Typically, a custodial parent will invoke the doctrine of equitable estoppel in divorce proceedings to prevent a spouse who is not the biological parent, but is only a stepparent within the strict meaning of the term, from denying paternity and thus escaping the duty of support. Consistent with equitable estoppel, equitable estoppel in paternity/support cases generally applies when the following elements are present: (1) one party to the action has made a misrepresentation as to paternity; (2) that party knew or should have known the truth concerning paternity; (3) the misrepresentation was made deliberately; (4) another party reasonably relied on the misrepresentation; and (5) the other party suffered prejudice as a result. See generally 31 C.J.S. Estoppel § 67 (1964). The doctrine applies regardless of whether the mother or the father is seeking to establish paternity.