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

DOIhttp://doi.org/10.1111/j.1741-3729.2002.00301.x
Date01 October 2002
Published date01 October 2002
AuthorJason D. Hans
2002, Vol. 51, No. 4 301
Special Collection
Stepparenting After Divorce: Stepparents’ Legal Position
Regarding Custody, Access, and Support*
Jason D. Hans**
Both the research and the clinical literature indicate that over time stepparents and stepchildren may develop emotional attachments
similar to their biological counterparts. Nevertheless, stepparents are legal strangers to stepchildren—the relationship is not protected
by law during marriage or following marital dissolution. There are some legal avenues by which stepparents may obtain parenting
rights or be required to provide f‌inancial support for a stepchild following divorce. The legal process encountered by stepparents
regarding custody, access, and child support are elucidated here, in addition to a discussion of policy recommendations and practical
implications.
Diverse family arrangements challenged the plasticity of
family law throughout the latter half of the 20th century
(Gregory, 1999; Mason, Fine, & Carnochan, 2001).
Courts were increasingly asked to make decisions on issues for
which there was previously little, if any, legislative guidance.
For example, cases proliferated involving various family 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 issues
were diverse, many cases revolved around the parent-child dyad,
such as stepparents who sought custody of or access to their
stepchildren following divorce. Stepparents face considerable
obstacles when they seek parental rights following divorce be-
cause they must overcome biological parents’ rights, which have
long been protected by the constitution (e.g., Pierce v. Society
of Sisters, 1925).
Research has demonstrated that nonbiological caregivers can
form relationships with children similar to those of biological
parent-child dyads, which appears to validate the stepparents’
requests. For example, as a caregiver and child spend more time
with one another, a secure attachment relationship more likely
develops (Goossens & Van Ijzendoorn, 1990; Howes & Smith,
1995). Similarly, it has been argued that level of attachment
should be one of the primary determinants in selecting perma-
nent homes for foster children (Hegar, 1993). Although close
emotional bonds are expected in parent-child relationships (es-
pecially in the mother-child dyad), they are not limited to this
dyad, 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 stepfamily
members begin to think of themselves more as a nuclear family
(i.e., a family consisting of a married couple and their biological
children) than as a stepfamily.
Although lawmakers have been slow to recognize nontra-
ditional family relationships (Morgan, 1996a), including stepre-
*I would like to thank Marilyn Coleman for her insightful feedback on earlier drafts
of 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.
(Family Relations, 2002, 51, 301–307)
lationships (Fine & Fine, 1992; Mason, Fine, & Carnochan,
2001), the burgeoning prevalence and complexity of stepfamilies
has created an upsurge in the amount of attention they receive
from legislators and judges (Morgan, 1996b). As shown in the
Appendix, most states now have legislation that gives third 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 part
clear, 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 divorce
mediators: How and to what extent can (or should) rights be
afforded to stepparents when a close and loving bond has formed
between them and a child to whom they have no legal relation?
This question comes to the forefront when remarriages end in
divorce and stepparents desire an ongoing relationship with their
stepchildren. The diff‌iculty is in honoring the psychological at-
tachment that may exist between a stepparent and stepchild while
not denying the biological parents’ constitutional right to the
child. Divorce mediators often approach this quandary by em-
phasizing to parents that the ongoing involvement of a caring
stepparent, an additional source of support and continuity in their
children’s lives, is benef‌icial for their children. Ultimately, step-
parents have few options if the biological parents do not consent
to the stepparents’ continued involvement. A similar conundrum
was addressed by the U.S. Supreme Court as it relates to grand-
parent access in the state of Washington, and with caution the
majority favored parents’ right to make decisions regarding the
rearing of their children provided the children are adequately
cared for (Troxel v. Granville, 2000). Nevertheless, stepparents
and children who coreside often develop genuine parent-child-
like relationships. Thus, a legitimate argument might be raised
that a stepparent can be a ‘‘parent,’’ and when circumstances
dictate should be granted the same legal protections given to
biological 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 to
another necessitates that courts be granted enough latitude to
consider the unique facts of each case while providing some
standard upon which to base a decision. The ambiguity that sur-
rounds this diff‌icult issue may heighten both the confusion and
anxiety of litigants involved in these cases, as well as create a
false sense of hope (or hopelessness) among them. The purpose
of the f‌irst part of this article is to explain legal processes and

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