Third Party Stepparent Childcare

• Citation: Vol. 67 No. 2
• Publication year: 2016

Third Party Stepparent Childcare

Jeffrey A. Parness

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Third Party Stepparent Childcare

by Jeffrey A. Parness^*

I. Introduction

More and more children are raised by a parent and a stepparent.¹ These children are often unaware of the differences between such child caretakers under law. When a parent and a stepparent separate, stepparent childcare often ceases at the direction of the parent, sometimes prompting harm to the child, to the stepparent, and to other one-time and current family members (including stepgrandparents and stepsiblings). As well, stepparent childcare can cease when a parent dies, prompting similar harm.²

Court orders on continuing stepparent childcare, over parental objections, upon parent and stepparent separations or parental deaths are sometimes available.³ Stepparents can be deemed legal parents (as under de facto parentage and equitable adoption doctrines).⁴ Stepparents can also be afforded third party (that is nonparent) standing to seek

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childcare orders.⁵ Availability of continuing stepparent childcare is limited, however, by the superior parental rights doctrine arising under the federal constitution, which is most notably addressed in Troxel v. Granville.⁶ Without federal constitutional constraints, third party stepparent childcare orders are further limited by incomplete, stingy, or absent state legislation. Too often, statutory barriers significantly disserve the best interests of children, particularly by prompting terminations of loving and beneficial stepchild-stepparent (and related familial) relationships without serving meaningful, countervailing interests. Courts commonly refrain from lawmaking in the absence of General Assembly directive.

This Article explores the federal constitutional limits on third party stepparent childcare over current parental objections. The Article then surveys both general and special contemporary American state laws on third party childcare, as well as some recent Illinois General Assembly proposals since they further illustrate available options for American state lawmakers. This Article finds existing legislative initiatives lacking, resulting in inadequate protections of the best interests of children, which is the guiding principle for most all of American state laws on child welfare. The Article concludes by urging broader opportunities for stepparent⁷ third party childcare,⁸ with expansion

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coming preferably via new special stepparent childcare statutes, rather than by general third party childcare laws or by common law precedents.⁹

II. Federal Constitutional Limits on Third Party Stepparent Childcare

In Troxel v. Granville,¹⁰ Justice O'Connor, writing for herself and three other United States Supreme Court Justices, noted the "liberty interests" of parents in the "care, custody, and control of their children" (herein childcare interests) generally foreclose states from compelling grandparent visitation over parental objections.¹¹ Yet, the four Justices recognized that "special factors" might justify judicial interference as long as a parent's contrary wishes were accorded "at least some special weight."¹² The plurality, together with concurring Justice Souter, reserved the question of whether any "nonparental" visitation order must "include a showing of harm or potential harm to the child."¹³ Justice Souter did hint, however, that at least some nonparental visitation could be based solely on a preexisting "substantial relationship" between a

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child and a nonparent and on "the State's particular best-interests standard."¹⁴

In his dissent, Justice Kennedy, not unlike Justice Souter, observed that a best interests standard might be constitutional where the nonparent acted "in a caregiving role over a significant period of time."¹⁵ His analysis went beyond visitation by hinting such a nonparent might even be afforded a "de facto" parent status.¹⁶ In a second dissent, Justice Scalia noted the possibility of "gradations" of nonparents in childcare settings.¹⁷ In a third dissent, Justice Stevens observed that nonparents seeking childcare must be distinguished by whether there is a "presence or absence of some embodiment of family."¹⁸

So, parental objections to nonparental childcare are not always dispositive. Yet, because the U.S. Supreme Court has said little since Troxel, there is much uncertainty.¹⁹ While some state legislatures extensively refined their grandparent visitation statutes after Troxel,²⁰

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many have not addressed the third party childcare interests of stepparents.²¹ Without any, or with stingy or incomplete, statutes, judges are left to resolve the import of "a caregiving role over a significant period of time" by a stepparent, assuming there are no statutory or separation of powers barriers to judicial action.²²

Surely, some state legislatures and courts, since Troxel, have gone beyond third party childcare by recognizing new parental child caretaking interests in nonbiological and nonadoptive caretakers, including grandparents and stepparents.²³ Here, one-time third parties are deemed legal parents sometime after birth through new doctrines such as equitable estoppel, equitable adoption, and de facto parentage.²⁴ This Article does not explore such parentage, however, because stepparent childcare remains important notwithstanding these new parentage forms, which are typically imprecise because they arise at no particular moment in time. New parentage is usually foreclosed when a child already has two other parents who are recognized by the law.²⁵ Further, terminations of parental rights are not only difficult to justify and prove, but also can end parental child support obligations in ways sometimes contrary to children's best interests.

III. SURVEY OF AMERICAN STATE LAWS ON THIRD PARTY STEPPARENT CHILDCARE

A. General Laws

American state laws recognize certain parental acts, not amounting to abuse, neglect, or abandonment, can diminish superior parental rights

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by prompting nonparent childcare standing for stepparents and others.²⁶ Often, the nonparents are described as taking on parental duties. These laws are frequently comparable to American state laws recognizing de facto parentage for stepparents and other one-time third parties.²⁷

For example, a South Dakota statute allows "any person other than the parent of a child to intervene or petition a court . . . for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship."²⁸ In South Dakota, a parent's "presumptive right to custody" is diminished when there is abandonment or persistent neglect; forfeiture or surrender of parental rights to a nonparent; abdication of "parental rights and responsibilities"; or "extraordinary circumstances" where parental custody "would result in serious detriment to the child."²⁹ In Kentucky, a "de facto custodian" of a child can seek custody if they were "the primary caregiver" and "financial supporter," resided with the child for at least six months, and the child is under three years of age.³⁰ In Colorado,

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there is nonparent standing to seek an allocation of parental responsibilities when the nonparent "has had the physical care of a child for a period of six months or more."³¹ In New Mexico, when "neither parent is able . . . to provide appropriate care," a child may be "raised by . . . kinship caregivers,"³² who include an adult with a significant bond to the child and who cares for the child "consistent with the duties and responsibilities of a parent."³³ In Wisconsin, a "person who has maintained a relationship similar to a parent-child relationship with the child" may secure "reasonable visitation rights . . . if the court determines that visitation is in the best interest of the child."³⁴ In Missouri, quite broadly, there is potential "[t]hird-party custody or visitation" when "the welfare of the child requires, and it is in the best interests of the child . . . ."³⁵

At times, general third party childcare laws apply only in certain circumstances. One such circumstance is a parent's death or disability. Thus, a deceased parent's family members will be accorded third party childcare standing so that, with court approval, a parentless child can continue significant and beneficial familial relationships.³⁶

Besides statutes, there are case precedents generally recognizing standing for nonparent childcare. For example, in Ohio there can be no "shared parenting" contracts between parents and nonparents.³⁷ However, "a parent may voluntarily share with a nonparent the care, custody, and control of his or her child through a valid shared-custody agreement." This may create for a nonparent "an agreement for permanent shared legal custody of the parent's child" or an agreement

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for temporary shared legal custody, as when the agreement is revocable by the parent.³⁸ In Arkansas, the "in loco parentis" doctrine operates,³⁹ while in West Virginia, there is a "psychological parent doctrine."⁴⁰

General third party childcare laws in some states are very similar to the de facto parent laws in other states. Thus, while South Dakota recognizes third party childcare standing for one who, inter alia, "has closely bonded as a parental figure";⁴¹ Delaware recognizes de facto parent status for one who, inter alia, "acted in a parental role" long enough "to have established a bonded and dependent relationship with the child that is parental in nature."⁴²

B. Special Laws

In addition to the general laws, there are special childcare laws⁴³ that are applicable to certain designated third parties, including stepparents or just to stepparents (both present and former).⁴⁴ Such specific laws may be accompanied by general third party childcare laws that serve stepparents and other nonparents (like grandparents).

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In a Tennessee...