DO I HAVE AN OBLIGATION TO SUPPORT MY STEPCHILDREN?
Dr. Margorie Engel, Ph.D., ©2000*
Confusion about stepparent financial responsibility for stepchildren permeates American society. From our political institutions to our legal codes to the actions and attitudes of individual family members, questions abound with regard to the appropriate and necessary role stepparents should play in the fiscal support of stepchildren. With respect to financial responsibility for children, no uniform treatment of the stepparent-child relationship exists among the states. Marriage to a child's parent would seem to create a legal relationship but, to date, this "step" relationship does not typically create rights and obligations between the parties.
Common Law and Stepchild Support
According to common law, stepparents do not have a direct financial responsibility for the health, education, or welfare of their stepchildren. However, if the remarriage ends in divorce, the court notes two possible exceptions for direct financial responsibility to stepchildren by the stepparent in the custodial household: (1) in loco parentis and (2) the "estoppel doctrine."
Typically, in loco parentis is a voluntarily assumed obligation. It is a Latin phrase which means "in lieu of a parent." Teachers, camp counselors, stepparents, and others who take responsibility for children have a duty to act in loco parentis. This means they have the same power and authority over the children as do the parents, at least during the time that the children are under their control.
Millions of stepparents voluntarily provide financial resources for their stepchildren. According to common law, they have a right to be reimbursed by the children's biological father. (I don't know of a case where this has been ordered by the court.) Realistically, time and money bestowed on a stepchild is a gift — of love, or necessity. And if the parent and stepparent later divorce, the stepparent is seldom legally required to provide child support except under specific circumstances.
The Estoppel Doctrine prevents a stepparent from taking a different position or going back on a promise if the child would be financially harmed by the change. It is based on fairness when three conditions exist. The first condition is Representation, as indicated when the stepparent assumes the role of the child's parent — including providing financial support. The second condition is Detriment, describing the stepparent who interferes with the child's relationship with the biological parent and destroys the possibility of obtaining financial support from that parent. The third condition is Reliance, whereby the child relies upon the love and financial support of the stepparent. If these three conditions exist and a divorce occurs, the court may rule that the stepparent is responsible for child support.
By all means, do give love and financial support to your stepchildren. Just don't create a problem for yourself by aggressively interfering with the child's relationship with the biological parent and developing a pattern of paying for a child's necessary expenses when the biological parent is willing and able to do it.
Statutory Law and Financial Support of Stepchildren: State Law of General Applicability
In this usage, state law of "general applicability" refers to a stepparent's obligation to support stepchildren that is equated with the biological parent's obligation to support biological children — support obligations of stepparent and biological parent are coextensive. Some states do include the residential stepparent as a source of support in specified situations; some may even impose criminal penalties upon stepparents who do not fulfill the statutory duty of supporting their stepchildren. Where states have a statute providing that a stepparent has a financial responsibility to support a stepchild, it appears to be based upon the in loco parentis doctrine. Nevertheless, most stepchildren cannot legally claim support from their residential stepparents as few states have enacted statutes to enforce child support obligations on stepparents. (Twenty states do have a statute imposing a financial responsibility on the stepparent while the stepchild is living in the household: DE, HA, IA, KY, ME, MO, NJ, NY, NC, ND, OK, OR, SD, UT, VT, WA.)
Yours, Mine, and Ours: Support of Biological Children and Stepchildren
A stepparent might be in the position of supporting both biological children and stepchildren. This seems most likely to happen if the stepchildren do not receive adequate support payments from the non-custodial parent. Different views about stepchild support exist. Some scholars believe it is only common sense for parents to give priority to the children with whom they live, regardless of whether they are biological children or stepchildren. Court rulings are inconsistent. Some states claim that biological parents cannot reduce child support obligations because of remarriage expenses while others have determined that modification is appropriate.
The IRS exemption usually goes to the parent who has physical custody for the greater part of the year — no matter how little either of you actually contribute toward the child's financial support. The IRS recognizes an exception when the custodial parent waives this right. You use IRS Form 8332 to notify the IRS of this waiver. A new form must be completed each year that you want to use the waiver. It must be signed by both parents and filed by the non-custodial parent claiming the exemption.
If you have court ordered joint physical custody, the separation agreement will probably specify which parent is to claim the exemption. Even so, you and your ex may agree to one or more "waiver" years without going back to court for a change in your agreement. The operative word is agree. If the court order is silent on the topic of exemption, it automatically goes to the custodial parent. Or, the agreement may specify who will take the exemption. In either case, you and your ex have an opportunity to agree to "exception" years. If there is a tax savings to you as the non-custodial parent, negotiate sharing the savings with your ex spouse.
A child is treated as the dependent of both biological parents, regardless of remarriage status, for purposes of their individual contributions toward medical expenses and reimbursements. Provisions of insurance coverage for children in other households or for residential stepchildren is a gray area. Insurance policies may cover residential stepchildren if they are the income tax dependents of the remarried couple. Read the fine print about limitations, especially if the children are cared for in a joint physical custody arrangement.
Stepfamilies in the Real World
Stepparents are already an important emotional and financial resource for children. Census Bureau projections indicate that more than one-half of today's young people in the United States will become stepsons or stepdaughters in the near future. With so many citizens involved, it seems likely that our states and federal government will need to develop new and specific policies related to stepfamilies. Until a basic social issue has been resolved — nature versus nurture with regard to the care of and responsibility for children — little hope exists of consistent and easily understood family laws and policies or financial security for children.
The courts have had difficulty accepting the possibility that it might be in the child's best interest to have more than two legal parents. However, during a period of high divorce rates, unwed parenthood, couples living together without benefit of a legal document, and recognition that almost half of all marriages are remarriages, it appears that we all are helping to rear each other's children.
As stepparents are already assuming or being given financial responsibility for stepchildren, we must address the issue of specified stepparent custodial rights. Using the doctrine of in loco parentis, this approach recognizes that the natural parent is typically alive and sometimes active as a parent — so a child could officially benefit from two moms and/or two dads who are involved in day-to-day parenting. In this respect, children can, and often do, have more than one mother or father. Whether by law or happenstance, stepparents already have some financial responsibility for stepchildren — what they don't seem to have, however, are rights.
* This article first appeared in Bride Again magazine, Summer 2000. Permission granted for use here by Bride Again magazine.