Mary Ann Mason, Arlene Skolnick & Stephen D. Sugarman, Editors 1998
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Chapter 5
The Modern American Stepfamily: Problems and Possibilities
by Mary Ann Mason
Cinderella had one, so did Snow White and Hansel and Gretel. Our traditional cultural myths are filled with the presence of evil stepmothers. We learn from the stories read to us as children that stepparents, particularly stepmothers, are not to be trusted. They may pretend to love us in front of our biological parent, but the moment our real parent is out of sight they will treat us cruelly and shower their own children with kindnesses. Few modern children’s tales paint stepparents so harshly, still the negative image of stepparents lingers in public policy. While the rights and obligations of biological parents, wed or unwed, have been greatly strengthened in recent times, stepparents have been virtually ignored. At best it is fair to say that as a society we have a poorly formed concept of the role of stepparents and a reluctance to clarify that role.
Indeed, the contrast between the legal status of stepparents and the presumptive rights and obligations of natural parents is remarkable. Child support obligations, custody rights, and inheritance rights exist between children and their natural parents by virtue of a biological tie alone, regardless of the quality of social or emotional bonds between parent and child, and regardless of whether the parents are married. In recent years policy changes have extended the rights and obligations of natural parents, particularly in regard to unwed and divorced parents, but have not advanced with regard to stepparents. Stepparents in most states have no obligation during the marriage to support their stepchildren, nor do they enjoy any right of custody or control. Consistent with this pattern, if the marriage terminates through divorce or death, they usually have no rights to custody or even visitation, however long-standing their relationship with their stepchildren. Conversely, stepparents have no obligation to pay child support following divorce, even if their stepchildren have depended on their income for many years. In turn, stepchildren have no right of inheritance in the event of the stepparent’s death (they are, however, eligible for Social Security benefits in most cases).’
Policymakers who spend a great deal of time worrying about the economic and psychological effects of divorce on children rarely consider the fact that about 70 percent of mothers are remarried within six years. Moreover, about 28 percent of children are born to unwed mothers, many of whom eventually marry someone who is not the father of their child. In a study including all children, not just children of divorce, it was estimated that one-fourth of the children born in the United States in the early 1980s will live with a stepparent before they reach adulthood.2 These numbers are likely to increase in the future, at least as long as the number of singleparent families continues to grow. In light of these demographic trends, federal and state policies affecting families and children, as well as policies governing private-sector employee benefits, insurance, and other critical areas of everyday life, may need to be adapted to address the concerns of modern stepfamilies.
In recent years stepfamilies have received fresh attention from the psychological and social sciences but little from legal and policy scholars. We now know a good deal about whom modern stepfamilies are and how they function, but there have been few attempts to apply this knowledge to policy. This chapter first of all reviews the recent findings on the everyday social and economic functioning of today’s stepfamilies, and then examines current state and federal policies or lack of them in this arena. Finally, the sparse set of current policy recommendations, including my own, are presented. These proposals range from active discouragement of stepfamilies3 to a consideration of stepparents as de facto parents, with all the rights and responsibilities of biological parents during marriage, and a limited extension of these rights and responsibilities following the breakup of marriage or the death of the stepparent.4
The Modern Stepfamily
The modern stepfamily is different and more complex than Cinderella’s or Snow White’s in several important ways. First, the stepparent who lives with the children is far more likely to be a stepfather than a stepmother, and in most cases the children’s biological father is still alive and a presence, in varying degrees, in their lives. Today it is divorce, rather than death which usually serves as the background event for the formation of the stepfamily, and it is the custodial mother who remarries (86 percent of stepchildren live primarily with a custodial mother and stepfather),5 initiating a new legal arrangement with a stepfather.6
Let us take the case of the Jones-Hutchins family. Sara was eight and Josh five when their mother and father, Martha and Ray Jones divorced. Three years later Martha married Sam Hutchins, who had no children. They bought a house together and the children received health and other benefits from Sam’s job, since Martha was working part time at a job with no benefits.
Theoretically, this new parental arrangement was a triangle, since Ray was still on the scene and initially saw the children every other weekend. In most stepfamilies the non-custodial parent, usually the father, is still alive (only in 25 percent of cases is the non-custodial parent dead, or his whereabouts unknown). This creates the phenomenon of more than two parents, a situation that conventional policymakers are not well equipped to address. However, according to the National Survey of Families and Households (NSFH), a nationally representative sample of families, contact between stepchildren and their absent natural fathers is not that frequent. Contact falls into four broad patterns: roughly one-quarter of all stepchildren have no association at all with their fathers and receive no child support; one-quarter see their fathers only once a year or less often and receive no child support; one-quarter have intermittent contact or receive some child support; and one-quarter may or may not receive child support but have fairly regular contact, seeing their fathers once a month or more. Using these data as guides to the quality and intensity of the father-child relationship, it appears that relatively few stepchildren are close to their natural fathers or have enough contact with them to permit the fathers to play a prominent role in the children’s upbringing. Still, at least half of natural fathers do figure in their children’s lives to some degree.7 The presence of the non-custodial parent usually precludes the option of stepparent adoption, a solution that would solve the legal ambiguities, at least, of the stepparent’s role.
In size, according to the National Survey of Families and Households, modern residential stepfamilies resemble modern non-divorced families and single-parent families, with an average of two children per family. Only families with two stepparents (the rarest type of stepfamily, in which both parents had children from previous relationships, and both are the custodial parents) are larger, with an average of 3.4 children per household. In part because divorce and remarriage take time, children are older. In the NSFH households, the youngest stepchildren in families are, on average, aged eleven, while the youngest children in non-divorced families are six and a half.8
There are also, of course, nonresidential stepparents (the spouses of non-custodial parents), usually stepmothers. In our case, Ray married again, the year after Martha married Sam. Ray’s new wife, Leslie, was the custodial parent of Audrey, age twelve. This marriage complicated the weekend visits. The Jones children were resentful of their new stepmother, Leslie, and her daughter, Audrey. Ray found it easier to see them alone, and his visits became less frequent.
In contrast to residential stepparents, absent biological parents only rarely provide much financial or other help to their children. Some do not because they are dead or cannot be found; about 26 percent of custodial, remarried mothers and 28 percent of single mothers report that their child’s father is deceased or of unknown whereabouts. Yet even in the three-quarters of families where the non-custodial parent’s whereabouts are known, only about one-third of all custodial mothers (single and remarried) receive child support or alimony from former spouses, and the amounts involved are small compared to the cost of raising children. According to NSFH data, remarried women with awards receive on average $1780 per year, while single mothers receive $1383. Clearly, former spouses cannot be relied on to lift custodial mothers and their children out of poverty.9
The picture is still more complex, as is true with all issues relating to stepfamilies. Some non-custodial fathers, like Ray Jones in our scenario, have remarried and have stepchildren themselves. These relationships, too, are evident in the NSFH data. Nearly one-quarter (23 percent) of residential stepfathers have minor children from former relationships living elsewhere. Two-thirds of those report paying child support for their children.20 In our case, Ray Jones did continue his child support payments, but he felt squeezed by the economic obligation of contributing to two households. This is a growing class of fathers who frequently feel resentful about the heavy burden of supporting two households, particularly when their first wife has remarried.
In sum, although we have no data which precisely examine the distribution of resources within a stepfamily, it is fair to assume that stepfathers’ substantial contributions to family income improve their stepchildren’s material well-being by helping to cover basic living costs. For many formerly single-parent families, stepfathers’ incomes provided by remarriage are essential in preventing or ending poverty among custodial mothers and their children. (The data are less clear for the much smaller class of residential stepmothers.)
While legal dependency usually ends at eighteen, the economic resources available to a stepchild through remarriage could continue to be an important factor past childhood. College education and young adulthood are especially demanding economic events. The life-course studies undertaken by some researchers substantiate the interpersonal trends seen in stepfamilies before the stepchildren leave home. White reports that viewed from either the parent’s or the child’s perspective, relationships over the life-course between stepchildren and stepparents are substantially weaker than those between biological parents and children. These relationships are not monolithic, however; the best occur when the stepparent is a male, there are no step siblings, the stepparent has no children of his own, and the marriage between the biological parent and the stepparent is intact.2 On the other end, support relationships are nearly always cut off if the stepparent relationship is terminated because of divorce or the death of the natural parent.
The Jones children were fortunate. Martha and Sam enjoyed a good marriage, in spite of the stress of stepparenting, and Sam was glad to help them with college expenses. Their biological father, Ray, felt he had his own family to support; his stepdaughter, Audrey, also needed money for college. As Sara grew older she grew more accepting of Sam. And after her first child was born, she seemed happy to accept Sam as a grandfather for her child. Josh continued on good terms with Sam.
Again, one might ask to compare these findings to single-parent households where there are no stepparents to provide additional support. The data here are less available. While we do know that stepchildren leave home earlier and are less likely to attend college than children from intact families, the comparison with single-parent families is not clear.22 One study of perceived normative obligation to stepparents and stepchildren suggests that people in stepfamilies have weaker, but still important, family ties than do biological kin.23 In terms of economic and other forms of adult support, even weak ties cannot be discounted. They might, instead, become the focus of public policy initiatives.
Stepfamilies in Law and Public Policy
Both state and federal law set policies that affect stepfamilies. Overall, these policies do not reflect a coherent policy toward stepparents and stepchildren. Two competing models are roughly evident. One, a “stranger” model, followed by most states, treats the residential stepparent as if he or she were a legal stranger to the children, with no rights and no responsibilites. The other, a “dependency” model, most often followed by federal policymakers, assumes the residential stepfather is, in fact, supporting the stepchildren and provides benefits accordingly. But there is inconsistency in both state and federal policy. Some states lean at times toward a dependency model and require support in some instances, and the federal government sometimes treats the stepparent as if he or she were a stranger to the stepchildren, and ignores them in calculating benefits.
State law governs the traditional family matters of marriage, divorce, adoption, and inheritance, while federal law covers a wide range of programs and policies which touch on the lives of most Americans, including stepfamilies. As the provider of benefits through such programs as AFDC and Social Security, the federal government sets eligibility standards that affect the economic wellbeing of many stepfamilies. In addition, as the employer of the armed forces and civil servants, the federal government establishes employee benefits guidelines for vast numbers of…
The federal policies that concern us here are of two types: federal benefit programs given to families in need, including AFDC (until 1997) and Supplemental Security Income (SSI), and general programs not based on need, including Social Security was well as civil service and military personnel employee benefits. Most of these programs follow the dependency model. They go further than do most states in recognizing or promoting the actual family relationship of residential stepfamilies. Many of them (although not all) assume that residential stepparents support their stepchildren and accordingly make these children eligible for benefits equivalent to those afforded to other children of the family.
Despite the fact that federal law generally recognizes the dependency of residential stepchildren, it remains wanting in many respects. There is a great deal of inconsistency in how the numerous federal programs and policies treat the stepparent-stepchild relationship, and the very definitions of what constitutes a stepchild are often quite different across programs. Most of the programs strive for a dependency-based definition, such as living with or receiving 50 percent of support from a stepparent. However, some invoke the vague definition, “actual family relationship,” and some do not attempt any definition at all, thus potentially including nonresidential stepchildren among the beneficiaries. In some programs the category of stepchild is entirely absent or specifically excluded from the list of beneficiaries for some programs.
Even where program rules permit benefits for dependent stepchildren as for natural children, the benefits to stepchildren are typically severed by death or divorce.32 While Social Security does cover dependent stepchildren in the event of death, several programs specifically exclude stepchildren from eligibility for certain death benefits. Under the Federal Employees’ Retirement System, stepchildren are explicitly excluded from the definition of children in determining the default beneficiary, without concern for the stepchild’s possible dependency. All stepchildren are similarly excluded from eligibility for lump-sum payments under the Foreign Service Retirement and Disability System and the CIA Retirement and Disability program.33
Stepchildren are even more vulnerable in the event of divorce. Here the stranger model is turned to. As with state law, any legally recognized relationship is immediately severed upon divorce in nearly all federal programs. The children and their stepparents become as strangers. Social Security does not provide any cushion for stepchildren if the deceased stepparent is divorced from the custodial parent. Under Social Security law, the stepparent-stepchild relationship is terminated immediately upon divorce and the stepchild is no longer eligible for benefits even if the child has in fact been dependent on the insured stepparent for the duration of a very long marriage.34 If the divorce were finalized the day before the stepparent’s death the child would receive no benefits.
In sum, current federal policy goes part way toward defining the role of the stepparent by assuming a dependency model in most programs, even when state law does not, and providing benefits to stepchildren based on this assumption of stepparent support. However, as described, existing federal stepparent policy falls short in several critical areas. And state laws and policies fall far short of federal policies in their consideration of stepfamilies, for the most part treating stepparents as strangers with regard to their stepchildren.
New Policy Proposals
Proposals for policy reform regarding stepfamilies are scant in number and, so far, largely unheard by policymakers. Most of the proposals come from legal scholars, a few from social scientists. Stepparents have not been organized to demand reform, nor have child advocates. All the reforms have some disagreements with the existing stranger and dependency models, but few offer a completely new model.
All of the proposals I review base their arguments to a greater or lesser degree on social science data, although not always the same data. The proposers may roughly be divided into three camps. The first, and perhaps smallest camp, I call negativists. These are scholars who view stepfamilies from a sociobiological perspective, and find them a troublesome aberration to be actively discouraged. The second, and by far largest group of scholars, I term voluntarists. This group acknowledges both the complexity and the often distant nature of stepparent relationships, and largely believes that law and policy should leave stepfamilies alone, as it does now. If stepparents wish to take a greater role in their stepchildren’s lives, they should be encouraged to do so, by adoption or some other means. The third camp recognizes the growing presence of stepfamilies as an alternate family form and believes they should be recognized and strengthened in some important ways. This group, I call them reformists, believes the law should take the lead in providing more rights or obligations to stepparents. The few policy initiatives from this group range from small specific reforms regarding such issues as inheritance and visitation to my own proposal for a full-scale redefinition of stepparents’ rights and obligations.
The negativist viewpoint on stepparenting, most prominently represented by sociologist David Popenoe, relies on a sociobiological theory of reproduction. According to this theory, human beings will give unstintingly to their own biological children, in order to promote their own genes, but will be far less generous to others. The recent rise in divorce and out-of-wedlock births, according to Popenoe, has created a pattern of essentially fatherless households that cannot compete with the two-biological-parent families.
Popenoe believes the pattern of stepparent disengagement revealed by many researchers is largely based on this biological stinginess.
If the argument . . . is correct, and the family is fundamentally rooted in biology and at least partly activated by the “genetically selfish” activities of human beings, childbearing by non relatives is inherently problematic. It is not that unrelated individuals are unable to do the job of parenting, it is just that they are not as likely to do the job well. Stepfamily problems, in short, may be so intractable that the best strategy for dealing with them is to do everything possible to minimize their occurrence.
Moreover, Popenoe cites researchers on the greatly increased incidence of child abuse by stepfathers over natural fathers, who suggest that “stepchildren are not merely ‘disadvantaged’ but imperiled.”35 This argument is not so farfetched, he claims, in fact it is the stuff of our folk wisdom. Snow White and Hansel and Gretel had it right; stepparents are not merely uncaring, they may be dangerous.
Popenoe goes beyond the stranger model, which is neutral as to state activity, and suggests an active discouragement of stepparent families. He believes the best way to obstruct stepfamilies is to encourage married biological two-parent families. Premarital and marital counseling, a longer waiting period for divorce, and a redesign of the current welfare system so that marriage and family are empowered rather than denigrated are among his policy recommendations. He is heartened by what he calls the “new familism,” a growing recognition of the need for strong social bonds, which he believes can best be found in the biological two-parent family.36
The second group of scholars, whom I call voluntarists, generally believe that the stepparent relationship is essentially voluntary and private and the stranger model most clearly reflects this. The legal bond formed by remarriage is between man and wife-stepchildren are incidental; they are legal strangers. Stepparents may choose, or not choose, to become more involved with everyday economic and emotional support of their stepchildren; but the law should not mandate this relationship, it should simply reflect it. These scholars recognize the growth of stepfamilies as a factor of modern life and neither condone nor condemn this configuration. Family law scholar David Chambers probably speaks for most scholars in this large camp when he says,
“In most regards, this state of the law nicely complements the state of stepparent relationships in the United States. Recall the inescapable diversity of such relationships-residential and non-residential, beginning when the children are infants and when they are teenagers, leading to comfortable relationships in some cases and awkward relationships in others, lasting a few years and lasting many. In this context it seems sensible to permit those relationships to rest largely on the voluntary arrangements among stepparents and biologic parents. The current state of the law also amply recognizes our nations continuing absorption with the biologic relationship, especially as it informs our sensibilities about enduring financial obligations.”37
Chambers is not enthusiastic about imposing support obligations on stepparents, either during or following the termination of a marriage, but is interested in promoting voluntary adoption. He would, however, approve some middle ground where biological parents are not completely cut off in the adoption process.
Other voluntarists are attracted by the new English model of parenting, as enacted in the Children Act of 1989. Of great attraction to American voluntarists is the fact that under this model a stepparent who has been married at least two years to the biological parent may voluntarily petition for a residence order for his or her spouse’s child. With a residence order the stepparent has parental responsibility toward the child until the age of sixteen. But this order does not extinguish the parental responsibility of the non-custodial parent.38 In accordance with the Children Act of 1989, parents, biological or otherwise, no longer have parental rights, they have only parental responsibilities, and these cannot be extinguished upon the divorce of the biological parents. In England, therefore, it is possible for three adults to claim parental responsibility. Unlike biological parental responsibility, however, stepparent responsibility does not usually extend following divorce. The stepparent is not normally financially responsible following divorce, but he or she may apply for a visitation order.
The third group, whom I call reformists, believe that voluntary acts on the part of stepparents are not always adequate, and that it is necessary to reform the law in some way to more clearly define the rights and responsibilities of stepparents. The American Bar Association Family Law Section has been working for some years on a proposed Model Act to suggest legislative reforms regarding stepparents’ obligations to provide child support and rights to discipline, visitation, and custody. A Model Act is not binding anywhere; it is simply a model for all states to consider. Traditionally, however, Model Acts have been very influential in guiding state legislative reform. In its current form, the ABA Model Act would require stepparents to assume a duty of support during the duration of the remarriage only if the child is not adequately supported by the custodial and non-custodial parent. The issue is ultimately left to the discretion of the family court, but the Model Act does not require that the stepparent would need to have a close relationship with a stepchild before a support duty is imposed. The Model Act, however, does not describe what the rule should be if the stepparent and the custodial parent divorce.
The proposed statute is rather more complete in its discussion of stepparent visitation or custody rights following divorce. It takes a two-tiered approach, first asking if the stepparent has standing (a legal basis) to seek visitation and then asking if the visitation would be in the best interests of the child. The standing question is to be resolved with reference to five factors, which essentially examine the role of the stepparent in the child’s life (almost an in taco parentis question), the financial support offered by the stepparent, and the detriment to the child from denying visitation. The court, if it finds standing, then completes the analysis with the best interests standard of the jurisdiction. The Model Act’s section on physical custody also requires a two-tiered test, requiring standing and increasing the burden on the stepparent to present clear and convincing proof that he or she is the better custodial parent.
The ABA Model Act is a worthwhile start, in my opinion, but it is little more than that. At most it moves away from a stranger model and provides a limited concept of mandatory stepparent support during a marriage, acknowledging that stepchildren are at least sometimes dependent. It also gives a stepparent a fighting chance for visitation or custody following a divorce. It fails to clarify stepparents’ rights during the marriage, however, and does not deal with the issue of economic support at the period of maximum vulnerability, the termination of the marriage through death and divorce. Moreover, the Model Act, and, indeed, all the existing reform proposals, deal only with traditional legal concepts of parenthood defined by each state and do not consider the vast range of federal programs, or other public and private programs, that define the step parent-stepchild relationship for purposes of benefits, insurance, or other purposes.
I propose, instead, a new conceptualization of stepparent rights and responsibilities, a de facto parent model, that will cover all aspects of the stepparent-stepchild relationship and will extend to federal and private policy as well. My first concern in proposing a new framework is the welfare of the stepchildren, which is not adequately dealt with in either the stranger or the dependency model. The failure of state and, to a lesser extent, federal policy to address coherently the financial interdependencies of step relationships, described earlier in this chapter, means that children dependent upon a residential stepparent may not receive adequate support or benefits from that parent during the marriage, and they may not be protected economically in the event of divorce or parental death.
The longitudinal studies of families described earlier in this chapter suggest that the most difficult periods for children are those of marital transition, for example, divorce and remarriage. Families with a residential stepfather have a much higher family income than mother-headed single families; indeed, their household incomes look much like nuclear families.39 However, research demonstrates that stepfamilies are fragile and are more likely to terminate in divorce than biological families. The event of divorce can quite suddenly pull the resources available for the children back to the single-parent level. Currently children are at least financially cushioned by child support following the divorce of their biological parents, but have no protective support following the breakup of their stepfamily. Nor are they protected in the event of the death of the stepparent, which is certainly another period of vulnerability (as discussed earlier, only a small minority continue to receive support from non-custodial parents).
A second reason for proposing a new framework is to strengthen the relationship of the stepparent and stepchildren. While research generally finds that stepparents are less engaged in parenting than natural parents, research studies do not explain the causes; others must do so. In addition to the sociobiologists’ claim for stingy, genetically driven behavior, sociologists have posited the explanation of “incomplete institutionalization.”40 This theory is based on the belief that, by and large, people act as they are expected to act by society. In the case of stepfamilies, there are unclear or absent societal norms and standards for how to define the remarried family, especially the role of the stepparent relation to the stepchild.
Briefly, my new model requires, first of all, dividing stepparents into two subclasses: those who are de facto parents and those who are not. De facto parents would be defined as “those stepparents legally married to a natural parent who primarily reside with their stepchildren, or who provide at least 50 percent of the stepchild’s financial support.” Stepparents who do not meet the de facto parent requirements would, in all-important respects, disappear from policy.
For the purposes of federal and state policy, under this scheme, a de facto parent would be treated virtually the same as a natural parent during the marriage. The same rights, obligations, and presumptions would attach vis-à-vis their stepchildren, including the obligation of support. These rights and duties would continue in some form, based on the length of the marriage, following the custodial parent’s death or divorce from the stepparent, or the death of the stepparent. In the event of divorce the stepparent would have standing to seek custody or visitation but the stepparent could also be obligated for child support of a limited duration. Upon the death of a stepparent, a minor stepchild would be treated for purposes of inheritance and benefits as would a natural child.
So far this proposal resembles the common law doctrine of in taco parentis, described earlier, where the stepparent is treated for most purposes (except inheritance) as a parent on the condition that he or she voluntarily agrees to support the child. In the de facto model, however, support is mandatory, not voluntary, on the grounds both that it is not fair to stepchildren to be treated by the law in an unequal or arbitrary manner, and that child welfare considerations are best met by uniform support of stepchildren. Furthermore, in the traditional common law i~ taco parentis scenario, the non-custodial parent had died, and was not a factor to be reckoned with. Under this scheme, creating a de facto parent category for stepparents would not invalidate the existing rights and obligations of a non-custodial biological parent. Rather, this proposal would empower a stepparent as an additional parent.
Multiple parenting and the rights and obligations of the stepparent and children following divorce or death are controversial and difficult policy matters that require more detailed attention than the brief exposition that can be offered here. Multiple parenting is the barrier upon which many family law reform schemes, especially in custody and adoption, have foundered. It is also one of the reasons that there has been no consistent effort to reformulate the role of stepparents. Working out the details is critical. For instance, mandating stepparent support raises a central issue of fairness. If the stepparent is indeed required to support the child, there is a question about the support obligations of the non-custodial parent. Traditionally, most states have not recognized the stepparent contribution as an offset to child support.4′ While this policy promotes administrative efficiency, and may benefit some children, it may not be fair to the non-custodial parent. An important advance in recognizing the existence of multiple parents in the nonlinear family is to recognize multiple support obligations. The few states that require stepparent obligation have given limited attention to apportionment of child support obligations, offering no clear guidelines. I propose that state statutory requirements for stepparent obligation as de facto parents also include clear guidelines for apportionment of child support between the non-custodial natural parent and the stepparent.
Critics of this proposal may say that if the custodial parent’s support is reduced, the child will have fewer resources. For some children, this may be true, but as discussed earlier in this chapter, only about 25 percent of all stepchildren receive child support and the average amount is less than $2000 per year.42 Therefore, a reduction of this small amount of support to a minority of stepchildren would not have a large overall effect compared with the increased resources of living with a stepparent that most stepchildren enjoy. And, certainly, the additional safety net of protection in the event of the death of the stepparent or divorce from the custodial parent would benefit all stepchildren. In addition, under the de facto scheme, the reduction of the support payment for the non-custodial parent may help to sweeten the multiple parenting relationship.
Let us apply this model to the Jones-Hutchins family introduced earlier. If Ray Jones, the non-custodial parent, were paying $6000 a year support for his two children (on the high end for non-custodial parents according to the National Survey for Children and Families), his payments could be reduced by as much as half since Sam Hutchins’s income is $50,000 per year and he has no other dependents. It should be emphasized, however, that in most stepfamilies there would be no reduction in support, because the non-custodial parent is paying no support. In the Jones-Hutchins family the $3000 relief would certainly be welcome to Ray, who is also now living with and helping to support his new wife’s child. The relief would likely make him somewhat friendlier toward Sam, or at least more accepting of his role in his children’s lives. It also might make him more likely to continue support past eighteen, since he would not feel as financially pinched over the years. More important, while the children would lose some support, they would have the security that if Sam died they would be legal heirs and default beneficiaries to his life insurance. They could also ask for damages if his death were caused by negligence or work-related events. And if he and their mother divorced, they could continue for a time to be considered dependents on his health and other benefits and to receive support from him.
Another facet of multiple parenting is legal authority. If stepparents are required to accept parental support obligations, equal protection and fairness concerns dictate that they must also be given parental rights. Currently, state laws, as noted earlier, recognize only natural or adoptive parents; a stepparent currently has no legal authority over a stepchild, even to authorize a field trip. If stepparents had full parental rights, in some cases, as when the parents have shared legal custody, the law would be recognizing the parental rights of three parents, rather than two. While this sounds unusual, it is an accurate reflection of how many families now raise their children. Most often, however, it would be only the custodial parent and his or her spouse, the de facto parent, who would have authority to make decisions for the children in their home.
In the Jones-Hutchins family this policy would give Sam more recognition as a parent. Schools, camps, hospitals, and other institutions which require parental consent or involvement would now automatically include him in their consideration of the children’s interests. Since Sam is the more day-to-day parent, their biological father, Ray, may not mind at all. If he did mind, the three of them would have to work it out (or in an extreme event, take it to mediation or family court). In fact, since only a minority of non-custodial dads see their children on a regular basis, three-parent decision making would be unusual.
Critics of this scheme may argue that adoption, not the creation of the legal status of de facto parent, is the appropriate vehicle for granting stepparent full parental rights and responsibilities.43 If, as discussed earlier, nearly three-quarters of stepchildren are not being supported by their custodial parents, policy initiatives could be directed to terminating the non-paying parents’ rights and promoting stepparent adoption. Adoption is not possible, however, unless the parental rights of the absent natural parent have been terminated-a difficult procedure against a reluctant parent. Normally, the rights of a parent who maintains contact with his or her child cannot be terminated even if that parent is not contributing child support. And when parental rights are terminated, visitation rights are terminated as well in most states. It is by no means clear that it is in the best interests of children to terminate contact with a natural parent, even if the parent is not meeting his or her obligation to suport.4 As discussed earlier, a large percentage (another 25 percent or so), of custodial parents continue some contact with their children, even those not paying support.45 And while stepparent adoption should be encouraged when it is possible, this solution will not resolve the issue of defining the role of stepparents who have not adopted.
Extending, in some form, the rights and obligations following the termination of the marriage by divorce or death is equally problematical. Currently only a few courts have ruled in favor of support payments following divorce, and these have been decided on an individual basis. Only one state, Missouri, statutorily continues stepparent support obligations following divorce.46 It would clearly be in the best interests of the child to experience continued support, since a significant number of children may sink below the poverty line upon the dissolution of their stepfamily.47
Since the de facto model is based on dependency, not blood, a fair basis for support following divorce or the death of the custodial parent might be to require that a stepparent who qualified as a de facto parent for at least one year must contribute child support for half the number of years of dependency until the child reached majority. If a child resided with the stepparent for four years, the stepparent would be liable for sup-port for two years. If the biological non-custodial parent were still paying support payments, the amount could be apportioned. While it may be said that this policy would discourage people from becoming stepparents by marrying, it could also be said to discourage divorce once one has become a stepparent. Stepparents might consider working harder at maintaining a marriage if divorce had some real costs.
Conversely, stepparents should have rights as well as responsibilities following divorce or the death of the custodial parent. Divorced or widowed stepparents should be able to pursue visitation or custody if they have lived with and supported the child for at least one year. Once again, multiple parent claims might sometimes be an issue, but these could be resolved, as they are now, under a primary caretaker, or a best interest standard.
The death of a stepparent is a particular period of vulnerability for stepchildren for which they are unprotected by inheritance law. While Social Security and other federal survivor benefits are based on the premise that a stepchild relies on the support of the residential stepparent and will suffer the same hardship as natural children if the stepparent dies, state inheritance laws, notoriously archaic, decree that only biology, not dependency, counts. State laws should assume that a de facto parent would wish to have all his dependents receive a share of his estate if he died without a will. If the stepchildren are no longer dependent, that assumption would not necessarily prevail. The same assumption should prevail for insurance policies and compensation claims following an accidental death. A dependent stepchild, just as a natural child, should have the right to sue for loss of support.
On the federal front, a clear definition of stepparents as de facto parents would eliminate the inconsistencies regarding stepparents which plague current federal policies and would clarify the role of the residential stepparent. For the duration of the marriage, a stepchild would be treated as a natural child for purposes of support and the receipt of federal benefits. This treatment would persist in the event of the death of the stepparent. The stepchild would receive all the survivor and death benefits that would accrue to a natural child.48
In the case of divorce, the issue of federal benefits is more complicated. Stepchildren and natural children should not have identical coverage for federal benefits following divorce, again, but neither is it good policy to summarily cut off children who have been dependent, sometimes for many years, on the de facto parent. A better policy is to extend federal benefits for a period following divorce, based on a formula which matches half the number of years of dependency, as earlier suggested for child support. For instance, if the stepparent resided with the stepchild for four years, the child would be covered by Social Security survivor benefits and other federal benefits, including federal employee benefits, for a period of two years following the divorce. This solution would serve children by at least providing a transitional cushion. It would also be relatively easy to administer. In the case of the death of the biological custodial par-ent, benefits could be similarly extended, or continued indefinitely if the child remains in the custody of the stepparent.
All other private benefits programs would similarly gain from the application of a clear definition of the rights and obligations of residential stepparents. While these non-governmental programs, ranging from eligibility for private health and life insurance and annuities to access to employee child care, are not reviewed in this chapter, they almost surely reflect the same inconsistencies or silences evident in federal and state policies.
Ultimately, state law defines most of these stepfamily relationships, and it is difficult, if not impossible to achieve uniform reform on a state-by-state basis. In England it is possible to pass a single piece of national legislation, such as the Children Act of 1989, which completely redefines parental roles. In America, the process of reform is slower and less sure. Probably the first step in promoting a new policy would be for the federal government to insist all states pass stepparent general support obligation laws requiring stepparents acting as de facto parents (by my definition) to support their stepchildren as they do their natural children. This goal could be accomplished by making stepparent general support obligation laws a prerequisite for receiving federal welfare grants. Federal policy already assumes this support in figuring eligibility in many programs, but it has not insisted that states change their laws. Precedent for this strategy has been set by the Family Support Acts of 1988 in which the federal government mandated that states set up strict child support enforcement laws for divorced parents and unwed fathers at AFDC levels in order to secure AFDC funding.49 The second, larger step would be to require limited stepparent support following divorce, as described previously. Once the basic obligations were asserted, an articulation of basic rights would presumably follow.
Conclusion
Stepfamilies compose a large and growing sector of American families that is largely ignored by public policy. Social scientists tell us that these families have problems. Stepparent-stepchildren relationships, poorly defined by law and social norms, are not as strong or nurturing as those in non-divorced families, and stepchildren do not do as well in school and in other outside settings. Still, stepfamily relationships are important in lifting single-parent families out of poverty. When single or divorced mothers marry, the household income increases by more than threefold, rising to roughly the same level as nuclear families. A substantial portion of these families experiences divorce, however, placing the stepchildren at risk of falling back into poverty. It makes good public policy sense then, both to strengthen these stepfamily relationships and to cushion the transition for stepchildren should the relationship end.
Notes
1. Mary Ann Mason and David Simon, “The Ambiguous Stepparent: Federal Legislation in Search of a Model.” Family Law Quarterly 29:446-448, 1995.
2. E. Mavis Heatherington and Kathleen M. Jodl, “Stepfamilies as Settings for Child Development.” in Alan Booth and Judy Dunn (eds.) Stepfamilies: Who Benefits? Who Does Not? New Jersey: 1994, 55; and E. Mavis Heatherington, “An Overview of the Virginia Longitudinal Study of Divorce and Remarriage: A Focus on Early Adolescence.” Journal of Family Psychology 7:39-56, 1993.
3. David Popenoe, “Evolution of Marriage and Stepfamily Problems.” in Alan Booth and Judy Dunn (eds.) Stepfamilies: Who Benefits? Who Does Not? New Jersey: 1994, 3-28.
4. Mason and Simon, “The Ambiguous Stepparent: Federal Legislation in Search of a Model,” 467-482; Mary Ann Mason and Jane Mauldon, “The New Stepfamily Needs a New Public Policy.” Journal of Social Issues 52(3), Fall 1996.
5. U. S. Bureau of Census, 1989.
6. Divorce is not always the background event. An increasing, but still relatively small number of custodial mothers have not previously wed.
7. Mason and Mauldon, “The New Stepfamily Needs a New Public Policy,” 5.
8. Ibid., 6.
9. Heatherington and Jodl, “Stepfamilies as Settings for Child Development,” 55-81.
10. Ibid., 76.
11. E. Mavis Heatherington and William Clingempeel, “Coping with Marital Transitions: A Family Systems Perspective.” Monographs of the Society for Research in Child Development 5 7:2-3, Serial No. 227, New York: 1992; E. Thomson, Sara McLanahan, and R. B. Curtin, “Family Structure, Gender, and Parental Socialization. Journal of Marriage and the Family 54:368-378, 1992.
12. Heatherington and Jodl, “Stepfamilies as Settings for Child Development,” 69.
13. Ibid., 64-65.
14. Thomson, McLanahan, and Curtin, “Family Structure, Gender, and Parental Socialization,” 368-378.
15. L. Bumpass and J. Sweet, American Families and Households. New York:
Russell Sage Foundation, 1987, 23.
16. Paul Amato, “The Implications of Research Findings on Children in Stepfamilies.” in Alan Booth and Judy Dunn (eds.) Stepfamilies: Who Benefits? Who Does Not? New Jersey: Erlbaum, 1994, 84.
17. Nicholas Zill, “Understanding Why Children in Stepfamilies Have More Learning and Behavior Problems Than Children in Nuclear Families.” in Alan Booth and Judy Dunn (eds.) Stepfamilies: Who Benefits? Who Does Not? New Jersey: Erlbaum, 1994, 89-97.
18. Mason and Mauldon, “The New Stepfamily Needs a New Public Policy,” 7.
19. Ibid., 8.
20. Ibid.
21. Lynn White, “Stepfamilies Over the Lifecourse: Social Support.” in Alan Booth and Judy Dunn (eds.) Stepfamilies: Who Benefits? Who Does Not? New Jersey: Erlbaum, 1994, 109-139.
22. Ibid., 130.
23. A. S. Rossi and P. H. Rossi, Of Human Bonding: Parent-Child Relations Across the Life Course. New York: A. de Gruyter, 1990.
24. Utah Code Ann. 78-45-4.1.
25. Margaret Mahoney, Stefamilies and the Law. Ann Arbor: University of Michigan Press, 1994, 13-47.
26. Miller v. United States, 123 F.2d 715, 717 (8th Cir, 1941).
27. Niesen v. Niesen, 157 N. W.2d 660 664(Wis. 1968).
28. Hawaii Revised Stat. Ann., Title 31, Sec. 577-4.
29. David Chambers, “Stepparents, Biologic Parents, and the Law’s Perceptions of ‘Family’ after Divorce.” in S. Sugarman and H. H. Kay (eds.) Divorce Reform at the Crossroads, New Haven: Yale University Press, 1990, 102-
129.
30. Henrickson v. Gable.
31. Cal. Prob. Code, Sec. 6408.
32. Mason and Simon, “The Ambiguous Stepparent: Federal Legislation in Search of a Model,” 449.
33. Ibid., p. 460-466.
34. 42 U.S.C. sec. 416(e), 1994.
35. M. Daly and M. Wilson, Homicide. New York: Aldine de Gruyter, 1988,
230.
36. Barbara Whitehead, “A New Familism?” Family Affairs, Summer, 1992.
37. Chambers, “Stepparents, Biologic Parents, and the Law’s Perceptions of ‘Family’ after Divorce,” 26.
38. Mark A. Fine, “Social Policy Pertaining to Stepfamilies: Should Step-parents and Stepchildren Have the Option of Establishing a Legal Relationship?” in Alan Booth and Judy Dunn (eds.) Stepfamilies: Who Benefits? Who Does Not? New Jersey: Erlbaum, 1994, 199.
39. Mason and Mauldon,”The New Stepfamily Needs a New Public Policy,” 5.
40. Andrew Cherlin, “Remarriage as an Incomplete Institution.” American
o Journal of Sociology 84:634-649, 1978.
41. 5. Ramsey and J. Masson, “Stepparent Support of Stepchildren: A Coinparative Analysis of Policies and Problems in the American and British Experience.” Syracuse Law Review 36:649-666, 1985.
42. Mason and Mauldon,”The New Stepfamily Needs a New Public Policy,” 7.
43. Joan Hollinger (ed. in chief), et al., Adoption Law and Practice. New
York: Matthew Bender, 1988.
44. Katherine Bartlett, “Re-thinking Parenthood as an Exclusive Status: The Need for Alternatives When the Premise of the Nuclear Family Has Failed.” Virginia Law Review 70:879-903, 1984.
45. Mason and Mauldon, “The New Stepfamily Needs a New Public Policy,” 5.
46. Vernon’s Ann. Missouri Stats. 453.400, 1994.
47. Mason and Mauldon, “The New Stepfamily Needs a New Public Policy,” 5.
48. Mason and Simon, “The Ambiguous Stepparent: Federal Legislation in Search of a Model,” 471.
49. 100 P.L. 485; 102 Stat. 2343 (1988).
END OF PREVIEW