Though They Head Many Households, the Law Is Mute or Muddled on Their
Rights and Duties in Raising and Supporting Stepchildren
by Patricia McBroom
Almost a third of children living today will be stepchildren by the age of 18. Put another way, 21 percent of American families with children have at least one stepparent, according to the 1990 census.
Yet, in spite of this overwhelmingly common American experience, legal policies regarding stepparents and stepchildren are inconsistent, contradictory and downright archaic, according to a Berkeley scholar publishing in the current issue (fall '95) of the Family Law Quarterly, a journal of the American Bar Association.
The 40-page review by Mary Ann Mason, associate professor in the School of Social Welfare, and David W. Simon, law clerk to U.S. District Judge Robert W. Warren of Wisconsin, calls for governments to treat resident stepparents as de facto parents, with all the rights and responsibilities of natural parents.
Such new status would give stepparents the obligation of supporting the stepchildren they live with. At the same time, it would give this parent new authority and the legal standing to sue for visitation or custody rights, said Mason.
"Our policies on stepparenting are way out of touch with current needs and emerging patterns of family life in America," said Mason, who is a lawyer as well as a professor.
"We have no coherent framework for dealing with this relationship."
Moreover, she said, the welfare of children would be substantially improved if the stepparent relationship were better defined.
She said the image of a stepparent is still dominated by fairy tale stories of evil stepmothers that date from the 19th century.
By contrast, the vast majority of stepparents today--91 percent--are fathers and their contribution has become critical to the welfare of American children.
"The legal situation is badly in need of reform," said Mason. "Everybody talks about the single parent family and divorce, but we never talk about stepparents. This is the elephant in the living room that nobody sees."
Recent research by Mason and her colleagues here has shown that in the United States, on average, the stepfather's income is more than twice as high as his wife's income and accounts for three-quarters of the family income.
If not for the stepparent income, a significant number of children in this country would fall into poverty, said Mason.
The current review by Mason and Simon in the ABA journal breaks a public silence that has long surrounded the issue of stepparents.
Very recently, the bar associa-tion's family law section developed a model act that partially recognizes new parenting rights and duties for stepparents, but, Mason said, it only requires support of a child if the natural parents fail to provide.
"The model act is a worthwhile start, but it is only a start," she said.
In the de facto parent model proposed by Mason and Simon, stepparents would be responsible for support of any stepchildren they live with, while child support payments by a non-custodial parent would be cut accordingly.
In this way, a parent would not be forced to support two households, said Mason.
In any case, she said, the great majority of divorced fathers are not providing support for their natural-born children.
"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 their upbringing," she said, adding that fewer than 30 percent receive any child support.
Mason also believes that stepparents should remain responsible after divorce for half the years that the marriage lasted, thereby covering a vulnerable period when children lose their most financially secure parental support.
Divorce affects up to 40 percent of stepparent marriages, she said, and there is no safety net when children lose a stepfather as there is after the divorce of natural parents.
"Many stepparents might not want this financial responsibility, but if they also are given parental rights and no longer are treated as non-persons, they might feel differently," she said.
As it is, she said, stepparents "are acting as parents, but they are not recognized by the law. They can't even sign a consent slip for the child's field trip."
"If the wife dies and the stepfather has raised the children, custody now normally goes to the natural father, with no rights for the man who has really been the father," she said. Mason said stepparents regularly file suit seeking custody or visitation rights, but in most states, they don't have the legal standing to bring such a case.
An important aim of reform is to strengthen the stepparent family, said Mason, who hopes that new rights and duties as parents will remove the ambiguity that afflicts the stepparent role.
"Stepparents don't know how they are expected to behave, and that may be why it is so difficult," said Mason.
"Changes like this at least give them a chance to be more involved and to make their role stronger and cleaner."