3 Things Step-Parents Should Know About Divorce

23 October 2015
 Categories: , Blog

In fiction, step-parents often get a bad rap – think of the wicked stepmother archetype that exists in a number of children's fairy tales. In real life, step-parents are often important and much-loved figures in the lives of their step-children, which can make a divorce in a blended family an especially wrenching affair. That step relationship can also become legally complicated. If you're a step-parent who's headed for divorce court, take a look at what the laws say about your relationship with your step-children.

Before a Divorce

Many people mistakenly believe that a step-parent has no legal rights or responsibilities to their partner's children, even during the marriage. However, that's not entirely true. Usually, step-parents are obliged to act in loco parentis (in lieu of a parent) when the biological parent is not around. That means that you have the same authority and the same duty of care as the biological parents when those biological parents are not around.

Furthermore, in some states you may be required by law to provide financial support to your step children. At least 20 states have a statute addressing this responsibility. In some states, like Delaware, the requirement exists only if the biological parents are unable to support the children. For example, if your spouse loses their job, you're obligated to support your spouse's children the same way that you'd support your mutual children. These laws recognize that step-parents and step-children are not legal strangers – they do have a recognizable relationship. However, things may change with divorce.

Custody and Visitation

It's understandable that you might want to continue a relationship with children that you've been living with and caring for, possibly for most of their lives. You should know up-front that the chances of a step-parent being awarded custody are very slim. Even if your spouse is an unfit parent, family court would most likely try to place the child with the other biological parent or a biological family member before considering a step-parent. With that said, custody is a remote possibility in unusual cases.

What is likely more achievable is visitation. Technically speaking, a divorce puts you back into the category of a legal stranger to your step-children. However, the job of a family court judge is to issue a ruling in the best interest of the children. The child's best interest trumps all other considerations.

 If you can show that spending time with you is in your step-child's best interest, you may be able to win visitation. You'll have an especially good chance if the child also wants the visitation. Step and half-siblings may also enter into the equation – no judge wants to destroy a sibling bond, so if there are mutual children that you may get custody of, or you brought children of your own into the marriage who bonded with your step-children, then a judge may grant custody in the interest of preserving the sibling relationship.

Child Support

Just as step-parents are rarely awarded custody, they are also rarely ordered to pay child support. Legally speaking, you're no more obligated to support your step-children than you are to support your next-door neighbor's children. The main exception to this rule is called the Estoppel Doctrine. This doctrine basically says that if you renege on a promise to the child and that broken promise financially harms the child, you may be ordered to pay child support. This only applies if you assumed the role of a parent and provided financial support, if you interfered with the child's relationship with their biological parent, and if the child relies on your financial support.

More commonly, step-parents may end up paying child support by mutual agreement. For example, you could offer child support to your spouse in exchange for visitation rights. If you both agree on it, those stipulations can be written into the divorce decree.

Because divorcing as a step-parent can be complicated – particularly if you want to maintain a relationship with your step-children – you need good legal representation. An experienced family law attorney in your area can help you figure out your legal rights.