Stepparents need new rights and duties to solve family needs, says UC Berkeley scholar of family law

by Patricia McBroom

Berkeley -- 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 UC 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 the19th 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 at UC Berkeley 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 association'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," said Mason.

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 msot 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 nonpersons, 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. Such a case occurred recently in Michigan where a stepfather lost custody of a nine and ten-year-old that he had raised since infancy. After the mother's death, custody was awarded to a biological father whom the children had rarely seen.

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.

Relationships between stepparents and stepchildren are fraught by problems, she said. Studies have shown that stepparents are most often disengaged and lacking in authority, while the stepchildren range from actively negative to disengaged.

"There are certainly some exceptions to this picture, but overall, the bonds need to be strengthened," she said.

"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."

Mason and Simon also want to create inheritance rights for minor stepchildren, and they advocate extending death benefits and other kinds of governmental support to children who lose a stepparent.

Currently, government policy is enormously confused, said Mason. The federal government, for instance, assumes that stepparents are supporting stepchildren and counts that income in determining eligibility for many kinds of public programs. Yet, states have no requirement that stepparents support stepchildren and don't count the income for any purpose.


For further information, Professor Mary Ann Mason can be reached at UC Berkeley, at

(510) 643-6661.

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