This article originally appeared in a somewhat different form in the September 1996 issue of Divorce Litigation. Copyright © 1996-99 National Legal Research Group and Laura Wish Morgan. All rights reserved. A complete, on-line index to Divorce Litigation is available here.
THE DUTY OF STEPPARENTS TO SUPPORT THEIR STEPCHILDREN
Laura Wish Morgan
The 1990 census revealed a portrait of families that is anything but traditional. Of all "households" in the United States, only 21% consisted of a married couple residing with their own children, the "traditional" nuclear family. Of the remaining 79%, 29% consisted of a married couple with no children; 3% consisted of unmarried adult partners who reside together with or without children; 11% consisted of single parent families; 6% consisted of stepfamilies; and 25% consist of individuals living alone. See Bureau of the Census, U.S. Dep't of Commerce, Marriage in Divorce and Remarriage in the 1990s (Current Population Reports, Series P-23-180, Oct. 1992).
With particular focus on the stepfamily, the 1990 census also revealed that approximately 5.5 million married-couple households contain at least one stepchild under the age of eighteen. This constitutes 29% of all married-couple households with children. Further, stepchildren make up 20% of all children in married couple families. Moreover, in 1990, it was projected that the rate of divorce for couples married in the 1980s would be 50%. Thus, as we approach the year 2000, the percentage of stepchildren living in married couple families is expected to grow to 33%. Paul J. Buser, The First Generation of Stepchildren, 25 Fam. L.Q. 1, 2 (Spring 1991); Paul J. Buser, The New Wave: Stepparent Custody, Visitation, Support, 1 Div. Litig. 4 (Jan. 1990). Indeed, demographers predict that one in three children can be expected to spend some childhood years residing in a stepfamily. Paul C. Glick, Remarried Families, Stepfamilies and Stepchildren: A Brief Demographic Profile, 38 Fam. Rel. 24, 26 (1989).
It is worth noting at this point that the Census Bureau defines "stepparent" as the relationship formed whenever an individual marries the custodial parent of a minor child and thereafter resides with the child. This definition is utilized in many state statutes. This definition of stepfamily does not include the situation where a person, typically a woman, marries the noncustodial parent, typically the father, or where an person cohabits with the custodial parent outside the formal marriage relationship. Thus, arguably, there are even more of what we would consider "stepfamilies" extant in the United States than formally recognized by the Census Bureau.
Lawmakers, including both legislators and judges, have been traditionally slow to recognize many nontraditional family relationships. For example, it has been only recently that courts have been willing to include within the rubric of "stepparent" a person of the same sex as the custodial parent, thereby allowing gay stepparent adoptions. See Laura Wish Morgan, Adoption by Gay Couples, 8 Div. Litig. 15 (Jan. 1996).
With the growing number of stepchildren living in married couple families, however, comes the growing number of statutes and cases concerning the rights and responsibilities of stepparents to their stepchildren. Quite importantly, the law is now beginning to recognize that severing the psychological-parent/child relationship can be just as damaging as severing the biological parent/child relationship. Perhaps the most important work in this area is being done by the Family Law Section of the American Bar Association, which in 1987 began work on the Model Act Establishing the Rights and Duties of Stepparents. See Joel D. Tenenbaum, Legislation for Stepfamilies The Family Law Section Standing Committee Report, 25 Fam. L.Q. 137, 140 (1991) (draft proposed Model Act). See also Margaret M. Mahoney, Stepfamilies and the Law (1994); David L. Chambers, Stepparents, Biologic Parents, and the Law's Perception of the Family, in Divorce Reform at the Crossroads 102 (Stephen D. Sugarman and Herma Hill Kay, eds. 1990); Marcy Goldstein, The Rights and Obligations of Stepparents Desiring Visitation with Stepchildren: A Proposal for Change, 12 Probate L.J. 145 (1995); Robert J. Levy, Rights and Responsibilities for Extended Family Members, 27 Fam. L.Q. 191 (1993); S. Silverman, Stepparent Visitation Rights: Toward the Best Interests of the Child, 30 Fam. L.J. 943 (1991); Sarah H. Ramsey & Judith M. Masson, Stepparent Support of Stepchildren: A Comprehensive Analysis of Policies and Problems in the American and English Experience, 36 Syr. L. Rev. 659 (1985); Katherine T. Bartlett, Rethinking Parenthood as an Exclusive Status: The Need for More Legal Alternatives When the Premise of the Nuclear Family Has Failed, 70 Va. L. Rev. 879 (1984).
This article will survey the statutory and case law of the fifty states and the District of Columbia regarding the duty of stepparents to support their stepchildren, both during the marriage and after the marriage.
II. THE DUTY OF A STEPPARENT TO SUPPORT A STEPCHILD DURING THE MARRIAGE TO THE CUSTODIAL PARENT (INCLUDING THE COHABITANT'S DUTY OF SUPPORT TO THE OTHER COHABITANT'S CHILD DURING THE PERIOD OF COHABITATION)
A. The Common Law Duty of a Stepparent to Support a Stepchild
Under the common law, a stepparent has no duty to financially support a stepchild during the marriage to the child's natural parent merely by reason of the marriage. Stated otherwise, the relationship of stepparent and stepchild does not, in and of itself, impose any obligation of support. Grubb v. Sterrett, 315 F. Supp. 990 (D. Ind.), affirmed, 400 U.S. 922 (1970); In re Marriage of Dawley, 17 Cal. 3d 342, 131 Cal. Rptr. 3, 551 P.2d 323 (1976); Zeller v. Zeller, 195 Kan. 452, 407 P.2d 478 (1965); Brummit v. Kentucky, 357 S.W.2d 37 (Ky. 1962); Youmans v. Citizens Insurance Co. of America, 89 Mich. App. 387, 280 N.W.2d 539 (1979); Meagher v. Hennepin County Welfare Board, 300 Minn. 446, 221 N.W.2d 140 (1974); Hawkins v. Thompson, 210 S.W.2d 747 (Mo. Ct. App. 1948); Kaiser v. Kaiser, 93 Misc. 2d 36, 402 N.Y.S.2d 171 (1978); Green v. Department of Institutions and Agencies, 109 N.J. Super. 462, 263 A.2d 796 (App. Div. 1970); State v. White, 116 Ohio App. 522, 189 N.E.2d 160 (1962); Stack v. Stack, 141 Pa. Super. 147, 15 A.2d 76 (1940); Niesen v. Niesen, 38 Wis. 2d 599, 157 N.W.2d 660 (1968). See generally Margaret M. Mahoney, Support and Custody Aspects of the Stepparent-Child Relationship, 70 Cornell L. Rev. 38 (1984); 59 Am. Jur. 2d Parent and Child § 78 (1987).
A mother and father owe a duty to support their children, and this duty is not displaced by the custodial parent's marriage to a new spouse, the "stepparent," or by the fact that the parent may be cohabitating with another person. E.g., Utah Code Ann. § 78-45-4.2 (1992) (the duty of a stepparent to support a stepchild does not relieve the natural parent of his or her duty of support). See DeTavis v. Aragon, 104 N.M. 793, 727 P.2d 558 (1986); Monroe County ex rel. Palermo v. Palermo, 192 A.D.2d 1114, 596 N.Y.S.2d 252 (1993); Stack v. Stack, 141 Pa. Super. 147, 15 A.2d 76 (1940); Niesen v. Niesen, 38 Wis. 2d 599, 157 N.W.2d 660 (1968). The natural parents owe the child the primary responsibility of support, and stepparets' liability for support can only be secondary. E.g., Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445 (1994); Brandriet v. Larsen, 442 N.W.2f 455 (N.D. 1989).
A stepparent is obligated to support a stepchild during the marriage where (1) there is a statute imposing such a duty, or (2) the stepparent undertakes to act in loco parentis to the child.
B. Statutory Duty of a Stepparent to Support a Stepchild
Twenty states now have statutes imposing a duty on stepparents to support their stepchildren:
(1) Del. Code Ann. tit. 13, § 501(b) (1994) (stepparent liable for support of stepchild during marriage);
These statutes have withstood a variety of attacks, constitutional and otherwise. E.g., Openshaw v. Openshaw, 639 P.2d 177 (Utah 1981) (father entitled to reduction of child support for natural child based on his new obligation to support his stepchild); Washington Statewide Organization of Stepparents v. Smith, 85 Wash. 2d 564, 536 P.2d 1202 (1975) (statute is not a violation of equal protection by imposing on stepparents the duty of support while not imposing on cohabitants the same duty, not does statute impair obligation of marriage contracts). See generally Patricia Jean Lamkin, Annotation, Validity, Construction, and Application of Statute Imposing Upon Stepparent Obligation to Support Child, 75 A.L.R.3d 1129 (1977).
Where a statute provides that a stepparent has a duty to support a stepchild, the statute is essentially no more than a codification of the doctrine of in loco parentis doctrine. The in loco parentis doctrine states that if a stepparent takes stepchildren into his or her family or under his or her care in such a way that he or she places himself or herself in loco parentis, then the stepparent assumes an obligation to support the stepchildren. See Adele Stuart Meriam, The Stepfather in the Family (1940) (tracing the doctrine of in loco parentis in the United States to Williams v. Hutchinson, 5 Barb. 122 (N.Y. App. Div. 1849)). Thus, the codification of the in loco parentis doctrine into state legislation has not expanded the support rights of stepchildren as defined under the common law.
C. The Doctrine of in Loco Parentis
In the absence of a statute, under the common law, marriage alone does not obligate a stepparent to support his or her stepchild. Where, however, the stepparent acts in loco parentis to a stepchild, then the stepparent assumes an obligation to support the stepchild. Stated succinctly,
The universal rule is that a stepfather, as such, is not under obligation to support the stepchildren, but that, if he takes the children into his family or under his care in such a way that he places himself in loco parentis, he assumes an obligation to support them, and acquires a correlative right to their services.
Harris v. Lyon, 16 Ariz. 1, 140 P. 825 (1914). Accord State v. Smith, 485 S.W.2d 461 (Mo. Ct. App. 1972) (position stepparent assumes for himself determines if he stands in loco parentis, and if he voluntarily recieves child into family and treats it as a member thereof, he may be said to be standing in place of natural parent); Schneider v. Schneider, 25 N.J. Misc. 180, 52 A.2d 564 (Ch. Div. 1947) (if stepfather voluntarily accepts into his family a child of his wife by a former husband and assumes the obligations of a parent, such obligation continues as long as he permits the child to be in his home). See also In re Teddy's Estate, 214 Cal. App. 2d 113, 29 Cal. Rptr. 402 (1963); Ladd v. Welfare Commissioner, 3 Conn. Cir. 504, 217 A.2d 490 (1965); Kelley v. Iowa Dep't of Social Services, 197 N.W.2d 192 (Iowa 1972); Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445 (1994); Palmer v. Harrold, 101 Ohio App. 3d 732, 656 N.E.2d 708 (1995) (stepparent is liable for support of stepchild during marriage to natural parent under doctrine of in loco parentis); Drescher v. Morgan, 251 S.W.2d 173 (Tex. Civ. App. 1952).
As with all other equitable doctrines, the creation of an in loco parentis relationship depends on the facts of the case. Generally, there must be an intent by the stepparent to create the status of in loco parentis. Dodd v. United States, 76 F. Supp. 991 (D. Ark. 1948); Jackson v. Jackson, 278 A.2d 114 (D.C. 1971); Rutkowski v. Wasko, 286 A.D. 327, 143 N.Y.S.2d 1 (1955) (assumption of parental relationship by stepparent is largely question of intention which should not lightly or hastily be inferred); Appeal of Fowler, 130 Vt. 176, 288 A.2d 463 (1972); State ex rel. Gilroy v. Superior Court for King County, 37 Wash. 2d 926, 226 P.2d 882 (1951) (relationship of in loco parentis becomes established only when a person intends to assume toward the child the statue of parent). Most often, stepparents establish de facto in loco parentis relationships with their stepchildren during the course of the marriage of the child's custodial parent by residing in the same household and treating the stepchild as a natural child. Treating a stepchild as one's own includes taking responsibility for the child's care, education, and development, including contributing to the child's support without the expectation of financial compensation. E.g., Deal v. Deal, 545 So. 2d 780 (Ala. Civ. App. 1989); Brummitt v. Commonwealth, 357 S.W.2d 37 (Ky. 1962); Palmer v. Harrold, 101 Ohio App. 3d 732, 656 N.E.2d 708 (1995); In re Custody of H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995). Quite importantly, the presence or absence of the noncustodial natural parent is not a critical factor in determining whether a stepparent stands in the place of a parent.
For obvious reasons, it may be difficult for a stepparent to prove the intention not to stand in loco parentis to a stepchild when they reside in the same household. When the stepparent and stepchild share a household, the child naturally benefits from the stepparent's financial contributions to the household, and this benefit creates a presumption that the stepparent intends to assume financial responsibility for the child. Where, however, the stepparent unequivocally expresses a contrary intent, then the presumption may be rebutted. E.g., In re Besondy, 20 N.W. 366 (Minn. 1884) (express agreement between mother and her new husband that child would be supported by government benefits paid to her son, based on the child's father's military service, negated presumption of in loco parentis status).
Because the establishment of an in loco parentis relationship is dependent on the voluntary assumption of responsibility by the stepparent, the relationship is terminable at the will of the stepparent. Ex parte Lipscomb, 660 So. 2d 991 (Ala. 1994); Franklin v. Franklin, 75 Ariz. 151, 253 P.2d 337 (1953); Jackson v. Jackson, 278 A.2d 114 (D.C. 1971); Cavanaugh v. deBaudiniere, 1 Neb. App. 204, 493 N.W.2d 197 (1992); Falzo v. Falzo, 84 N.J. Super. 343, 202 A.2d 192 (App. Div. 1964).
The relationship can also be terminated by the actions of the stepchild. For example, in In re Marriage of Farrell, 67 Wash. App. 361, 835 P.2d 267 (1992), the court held that the in loco parentis relationship between the stepfather and stepdaughter was terminated when the stepdaughter removed herself from her stepfather's home. The court held that the in loco parentis relationship is voluntary and can be terminated at will, the daughter's actions had terminated the relationship.
Quite interestingly, because the law imposes no duty on a stepparent to support a stepchild outside the in loco parentis relationship, if an in loco parentis relationship has not been established during the marriage, a stepparent may argue on divorce that any support actually provided to a stepchild during the marriage constitutes a "drain" on marital resources, and that the stepparent is therefore entitled to a larger share of the equitable distribution award. For example, in Burgess v. Burgess, 710 P.2d 417 (Alaska 1985), the Alaska Supreme Court permitted the stepfather to receive a credit in the property distribution for the contributions he made during the marriage toward the support of his stepchild. See also Cox v. Cox, 882 P.2d 909 (Alaska 1994) (error not to consider husband's support for wife's children by prior marriage as a one relevant factor in dividing marital property). Cf. In re Marriage of Peterson, 211 Mont. 118, 683 P.2d 1304 (1984) (Montana Supreme Court refused to authorize an increase in stepfather's share of assets at divorce to compensate him for the consumption of marital income during the marriage, where in loco parentis relationship was established).
Note also the expenses of supporting a stepchild in the future are one relevant factor in dividing marital property, because those expenses have an undeniable effect upon the future financial condition of the parties. See Braun v. Braun, 532 N.W.2d 367 (N.D. 1995).
III. THE DUTY OF A STEPPARENT TO SUPPORT A STEPCHILD AFTER THE MARRIAGE TO THE CUSTODIAL PARENT HAS CEASED (INCLUDING THE COHABITANT'S DUTY OF SUPPORT TO THE OTHER COHABITANT'S CHILD AFTER THE PERIOD OF COHABITATION).
A. Statutory Provisions
As noted above, where a statute provides that a stepparent has a duty to support a stepchild, the statute is essentially no more than a codification of the in loco parentis doctrine. No statute or interpretation of the doctrine of in loco parentis imposes a duty of support on a stepparent after divorce where the stepparent and stepchildren are no longer living together as a family and the stepparent is not acting as a parent. For example, the North Dakota statute extends the stepparent's duty of support after divorce, but only so long as the stepchildren remain in the stepparent's family. Thus, the cases have universally held that once the parent and stepparent divorce, there is no duty of a stepparent to support a stepchild, unless an obligation to support a stepchild is established by either estoppel or contract. See U.S. v. Floyd, 81 F. 3d 1517 (10th Cir. 1996) (in loco parentis relationship is by nature temporary, and ends when the person standing in the shoes of the parent ceases to fulfill his or her responsibility of care); Deal v. Deal, 545 So. 2d 780 (Ala. Civ. App. 1989); Fenn v. Fenn, 174 Ariz. 84, 847 P.2d 129 (Ct. App. 1993) (no duty of stepparent to support stepchild after divorce, even though stepparent had begun adoption proceedings); Bryan v. Bryan, 132 Ariz. 353, 645 P.2d 1267 (Ct. App. 1982) (stepparents have no postdissolution duty to support their stepchildren); In re Krystle D., 30 Cal. App. 4th 1778, 37 Cal. Rptr. 2d 132 (1994) (in loco parentis relationship does not continue after dissolution); Swain v. Swain, 250 Cal. App. 2d 1, 58 Cal. Rptr. 83 (1967); K.A.T. v. C.A.B., 645 A.2d 570 (D.C. 1994); Portuondo v. Portuondo, 570 So. 2d 1338 (Fla. DCA 1990); Burney v. Burney, 233 Ga. 216, 210 S.W.2d 727 (1974); In re Petition of Ash, 507 N.W.2d 400 (Iowa 1993) (there is no duty of support by stepparent); In re Marriage of Bethards, 526 N.W.2d 871 (Iowa Ct. App. 1994) (the duty of support under doctrine of in loco parentis does not continue past dissolution of marriage); Tanielian v. Brooks, 202 Mich. App. 304, 508 N.W.2d 189 (1993) (no duty to support stepchild after divorce); Berisford v. Berisford, 322 N.W.2d 742 (Minn. 1982); Levesque v. Levesque, 773 S.W.2d 220 (Mo. Ct. App. 1989) (obligation of support to stepchild ceases on divorce); Quintela v. Quintela, 4 Neb. App. 396, 544 N.W.2d 111 (1996) (divorce terminates the in loco parentis relationship); Ruben v. Ruben, 123 N.H. 358, 461 A.2d 733, 735 (1983) (obligation to support stepchildren under statute depends on existence of valid marriage and ceases on entry of divorce); Klipstein v. Zalewski, 230 N.J. Super. 567, 553 A.2d 1384 (1988) (in absence of equitable estoppel, there is no duty of stepparent to support stepchild); Chiarello v. Chiarello, 51 A.D.2d 1089, 381 N.Y.S.2d 156 (1976) (after divorce, relationship as stepparent was terminated, and there was no duty to support former wife's children); Duffey v. Duffey, 113 N.C. App. 382, 438 S.E.2d 445 (1994) (there is no duty of stepparent to support stepchild after divorce); Drawbaugh v. Drawbaugh, 436 Pa. Super. 57, 647 A.2d 240 (1994) (no support obligation after divorce by stepparent to stepchild); Garman v. Garman, 435 Pa. Super. 590, 646 A.2d 1251 (1994); Concerned Parents of Stepchildren v. Mitchell, 645 P.2d 629 (Utah 1982). See generally David B. Sweet, Annotation, Stepparent's Postdivorce Duty to Support Stepchild, 44 A.L.R.4th 520 (1986). But see In re Marriage of Bonnette, 492 N.W.2d 717 (Iowa Ct. App. 1992) (court may order stepparent to support former stepchild after divorce in order to maintain stepchild's standard of living which stepparent established).
Indeed, so strong is the principle that a stepparent owes no duty to support a stepchild after divorce that courts have even refused to consider the custodial parent's child support expenses in setting the amount of alimony owed by the former spouse/stepparent to the custodial parent following divorce, even though the "financial need" of the obligee spouse is almost always a support factor. The courts have reasoned that any reference to the stepchild's future expenses in the award of alimony would, in effect, create an unacceptable postdivorce stepparent support duty. Needel v. Needel, 15 Ariz. App. 471, 489 P.2d 729 (1971); Wood v. Wood, 166 Ga. 519, 143 S.E. 770 (1928); Harrison v. Harrison, 503 So. 2d 116 (La. Ct. App. 1987). But see Commonwealth ex rel. Bulson v. Bulson, 419 A.2d 1327 (1980) (alimony payments to custodial mother should reflect the needs of her child because former husband/stepfather had assumed child support duty).
Similarly, a court cannot award one spouse a greater share of the marital estate to help that spouse care for a child that is not of the parties, but is a stepchild of the former spouse. As stated in the case of Bledsoe v. Bledsoe, 294 Md. 183, 448 A.2d 353, 359 (1982):
It would be inconsistent to find that a spouse has no legal duty to support stepchildren, that the ordinary acceptation of the word child excludes stepchildren, and then torture the statue to find an intent to expel a spouse from his or her home based on an obligation to protect the children of the other spouse.
But cf. Cox v. Cox, 882 P.2d 909 (Alaska 1994) (error not to consider husband's support for wife's children by prior marriage as a one relevant factor in dividing marital property).
B. The Doctrine of Equitable Estoppel
Equitable estoppel is probably the most powerful tool used to impose on a stepparent a post-divorce duty to support a stepchild. See Margaret M. Mahoney, Stepfamilies and the Law § 2-VI at 31-38 (1994); Wendy Simpson, The Power of Positive Parenting: Equitable Estoppel in Paternity Cases, 4 Divorce Litigation 95 (May 1992).
Typically, a custodial parent will invoke the doctrine of equitable estoppel in divorce proceedings to prevent a spouse who is not the biological parent, but is only a stepparent within the strict meaning of the term, from denying paternity and thus escaping the duty of support. Consistent with equitable estoppel, equitable estoppel in paternity/support cases generally applies when the following elements are present: (1) one party to the action has made a misrepresentation as to paternity; (2) that party knew or should have known the truth concerning paternity; (3) the misrepresentation was made deliberately; (4) another party reasonably relied on the misrepresentation; and (5) the other party suffered prejudice as a result. See generally 31 C.J.S. Estoppel § 67 (1964). The doctrine applies regardless of whether the mother or the father is seeking to establish paternity.
The leading case on equitable estoppel is Clevenger v. Clevenger, 189 Cal. App. 2d 658, 11 Cal. Rptr. 707 (1961). In Clevenger, the wife argued that her husband, admittedly not the biological father of the child, had represented to the child that he was the father and that therefore he should be estopped from challenging paternity. The court noted that it was not clear from the facts whether the child knew that the husband was not his father. Then the court concluded:
If the facts should show, however, that the husband represented to the boy that he was his father, that the husband intended that his representation be accepted and acted upon by the child, that the child relied upon the representation and treated the husband as his father and gave his love and affection to him, that the child was ignorant of the true facts, we would have the foundation of the elements of estoppel.
11 Cal. Rptr. at 714. If the elements of estoppel are established, the court went on to say, estoppel would run in the child's rather than the mother's favor. Thus, the court rejected the husband's contention that since the mother did not rely on his conduct and was not herself injured by it, estoppel would not apply. See Wade v. Wade, 536 So. 2d 1158 (Fla. DCA 1988) (husband estopped from denying his paternity); Marshall v. Marshall, 386 So. 2d 11 (Fla. DCA) (husband estopped from denying paternity), petition for review denied, 392 So. 2d 1377 (Fla. 1980); Taylor v. Taylor, 279 So. 2d 364 (Fla. DCA 1973) (stepparent may be compelled to support stepchild under principle of equitable estoppel); R.D.S. v. S.L.S., 402 N.E.2d 30 (Ind. Ct. App. 1980) (court rejected claim for support during marriage on equitable estoppel principles, reasoning that court has no authority to award support for child not of the marriage); In re Gallagher, 539 N.W.2d 479 (Iowa 1995); Johnson v. Johnson, 93 Mich. App. 415, 286 N.W.2d 886 (1979) (mother's marriage to stepfather during pregnancy, which cut off natural father's duty of support, estopped stepfather from denying paternity); Berrisford v. Berrisford, 322 N.W.2d 742 (Minn. 1982) (husband not estopped from denying paternity); Stein v. Stein, 831 S.W.2d 684 (Mo. Ct. App. 1992) (estoppel proven to establish support duty, where child relied on stepfather's representations of paternity); Quintela v. Quintela, 4 Neb. App. 396, 544 N.W.2d 111 (1996) (husband has legal duty to support child born to former wife during marriage based on principles of estoppel); Klipstein v. Zalewski, 230 N.J. Super. 567, 553 A.2d 1384 (1988); Miller v. Miller, 97 N.J. 154, 478 A.2d 351 (1984) (stepparent may be compelled to support stepchild under principle of equitable estoppel); Ross v. Ross, 126 N.J. Super. 394, 314 A.2d 623 (Juv. & Dom. Rel. Ct.) (husband and wife both estopped from denying husband's paternity), affirmed, 135 N.J. Super. 35, 342 A.2d 566 (App. Div. 1973); Vito L. v. Filomena L., 172 A.D.2d 648, 568 N.Y.S.2d 449 (1991) (husband estopped from denying paternity); Montelone v. Antia, 60 A.D.2d 603, 400 N.Y.S.2d 129 (1977); Lewis v. Lewis, 85 Misc. 2d 610, 381 N.Y.S.2d 631 (Sup. Ct. 1976) (court could award support for stepchild under theory of equitable estoppel); Withrow v. Webb, 53 N.C. App. 67, 280 S.E.2d 22 (1981) (former husband estopped from denying paternity); Dorton v. Dorton, 69 N.C. App. 764, 318 S.E.2d 344, review denied, 312 N.C. 621, 323 S.E.2d 922 (1984); Hall v. Rosen, 50 Ohio St. 2d 135, 363 N.E.2d 725 (1977) (recognizing duty of stepparent to support stepchild during marriage on principles of equitable estoppel); Pietros v. Pietros, 638 A.2d 545 (R.I. 1994); Pettinato v. Pettinato, 582 A.2d 909 (R.I. 1990) (stepparent liable for support after divorce under theory of equitable estoppel); E.H. v. M.H., 512 N.W.2d 148 (S.D. 1994) (husband not liable for post-divorce support of stepchildren on basis of equitable estoppel); Wiese v. Wiese, 699 P.2d 700 (Utah 1985) (stepfather could be ordered to pay support on basis of equitable estoppel); Ulrich v. Cornell, 168 Wis. 2d 792, 484 N.W.2d 545 (1992) (court rejected duty to support based on equitable estoppel principles).
A problem often encountered when trying to estop a former husband from denying paternity is that the element of prejudice to the child may be lacking. For example, in Knill v. Knill, 306 Md. 527, 510 A.2d 546 (1986), the court rejected the estoppel argument because, although the elements of representation and reliance were present, there was no evidence of prejudice to the child. The court noted that if the child had incurred any detriment, it was caused by his mother, who had "ripped the 'cloak of legitimacy' off the boy following a family dispute." Furthermore, the court noted, the child had not suffered financial loss as a result of his relationship with his mother's former husband because there was no evidence that the relationship had made it impossible for support to be received from the biological father. See also Remkiewicz v. Remkiewicz, 180 Conn. 114, 429 A.2d 833 (1980) (former husband filed an affidavit of parentage, publicly acknowledged the child as his own, and claimed the child as a tax allowance; nevertheless, court found that the child's mother had not changed her position to her detriment in reliance on the husband's actions); P. v. S., 407 A.2d 244 (Del. Fam. Ct. 1978) (husband had no relationship with child, never assumed role as father, and mother did not rely on marriage to her detriment); Fuller v. Fuller, 247 A.2d 767 (D.C. 1968) (requisite prejudice had not been shown where it was alleged that allowing the former husband to deny paternity would illegitimize the child; court observed that because the child's natural father had neither married the child's mother nor acknowledged paternity, the child was and always had been illegitimate). But see M.H.B. v. H.T.B., 100 N.J. 567, 498 A.2d 775 (1985) (recognizing personal as well as financial detriment under doctrine of equitable estoppel).
The theory of equitable estoppel has been applied in nontraditional partner cases as well. In Karin T. v. Michael T., 127 Misc. 2d 14, 484 N.Y.S.2d 780 (Fam. Ct. 1985), Michael was a woman who held herself out as a man. Michael and Karin were "married" in a ceremony, and Karin then gave birth to a child as a result of artificial insemination. Michael was listed as the father on the birth certificate. After the parties broke up, Michael was ordered to pay child support on the theory that Michael was equitably estopped from denying parental responsibility. Contra, e.g., Music v. Rachford, 654 So. 2d 1234 (Fla. Dist. Ct. App. 1995) (there can be no de facto parent relationship between child and mother's lesbian partner); In re Halvorsen, 521 N.W.2d 725 (Iowa 1994) (estoppel cannot apply to cohabitant). See also Note, Developments in the Law Sexual Orientation and the Law, 102 Harv. L. Rev. 1629 (1989).
C. Contractual Obligation of Support
It is an absolute truism that parents cannot, by way of contract, limit or otherwise negate their duty to support their children. It is also true, however, that parents can always agree by contract to provide support in excess of what they would otherwise be legally required to provide. See Laura Wish Morgan, Child Support Guidelines: Interpretation and Application § 4.08 (1996).
Similarly, a stepparent may contract to provide support for a stepchild after divorce, an obligation that the stepparent would not otherwise have. E.g., Dewey v. Dewey, 886 P.2d 623 (Alaska 1995) (support ordered based on agreement of parties); In re Marriage of Dawley, 17 Cal. 3d 342, 131 Cal. Rptr. 3, 551 P.2d 323 (1976) (court could order stepparent to pay support based on contractual obligation); Brown v. Brown, 287 Md. 273, 412 A.2d 396 (1980) (court enforced contract providing for support of stepchildren); Cavanaugh v. deBaudiniere, 1 Neb. App. 713, 493 N.W.2d 197 (1992) (court may grant visitation to stepparent, and will enforce contract between parties concerning support of stepchild); T. v. T., 216 Va. 867, 224 S.E.2d 148 (1976) (court enforced contract relating to support of stepchildren).
An oral agreement to provide post-divorce support for a stepchild is very difficult to prove. Most courts have taken the position that an oral representation to support a stepchild is no more than a manifestation of an intent to create an in loco parentis relationship. E.g., Albert v. Albert, 415 So. 2d 818 (Fla. Dist. Ct. App. 1982) (stepfather's statements that he would treat child as his own did not vary duties imposed by in loco parentis relationship); cf. L. v. L., 497 S.W.2d 840, 842 (Mo. Ct. App. 1973) (finding enforceable the stepfather's promise where the mother asked for and received an express assurance that the husband would not later reject the child).
IV. THE IMPACT OF STEPCHILDREN ON THE SUPPORT OBLIGATION FOR PRIOR BORN NATURAL CHILDREN
The states have been varied in their response to the question of how to consider the needs of stepchildren when determining the support obligation for prior born children. Since, as noted above, most divorced persons go on to remarry and have additional children, either natural children or stepchildren, the issue of what impact a new support obligation will have on a prior existing support obligation is far from academic.
Most states do not consider stepchildren to be "children of a subsequent marriage" in their child support guidelines. E.g., Ariz. C.S.G.(2)(e) (1994) (support of stepchildren is to be considered strictly voluntary); Ind. C.S.G., Guideline 3 (1996) (no adjustment for stepchildren); N.J. Admin. R. 5:6A, Appendix IX-E(C)(5) (1996) (stepchildren should not be considered when determining deduction); Okla. Stat. Ann. tit. 43, § 118(A) (1990 & Supp. 1996) (court shall not take into account stepchildren); Or. Admin. Reg. 137-50-320(3) (1995) (specifically excluded from definition of nonjoint child is stepchild); S.C. Soc. Serv. Reg. 114-4720(I) (Supp. 1995) (additional dependents do not include stepchildren). See also Haggard v. Haggard, 39 Cal. App. 4th 1566, 45 Cal. Rptr. 638 (1995) (no hardship deduction allowed for voluntary support of new wife's children); Mack v. Mack, 7 Haw. App. 171, 749 P.2d 478 (1988) (support of stepchild not basis for deviation); Donohue v. Getman, 432 N.W.2d 281 (S.D. 1988) (deviation not justified by support for stepchildren). This is true even though these same states may impose a statutory duty on the stepparent to support the stepchild.
The duty to support stepchildren is considered in the guidelines calculation in only four states: Michigan, New Hampshire, South Dakota, and Vermont. Mich. C.S. Formula Manual, II(N) (1996); N.H. Rev. Stat. Ann. § 458-C:4(III) (1992); S.D. Code Laws § 25-7-6.10 (1992); Vt. Stat. Ann. § 656a(a) (Supp. 1995); see Ainsworth v. Ainsworth, 154 Vt. 103, 574 A.2d 772 (1990). Clearly, if there is an affirmative duty of a stepparent to support a stepchild under a statute or under the doctrine of in loco parentis, this support obligation should be treated the same as an obligation to support one's own natural or adopted children.
Applying the same standard where a parent remarried and has stepchild as where a parent remarries and has a natural child does not help an obligor, however. See Laura Wish Morgan, Child Support Guidelines: Interpretation and Application § 3.04[b] (1996). Some states allow a parent to deduct the support of subsequent children from gross income to determine the income available for the support of prior children, but this is the minority rule. E.g., Ehlers v. Ehlers, 264 Ga. 668, 449 S.E.2d 840 (1994); Farley v. Liskey, 12 Va. App. 1, 401 S.E.2d 897 (1991).
Instead, most child support guidelines, and cases interpreting those guidelines, have taken the position that a noncustodial parent who becomes responsible for supporting the children of a second marriage does so with the knowledge of a continuing responsibility to the children of the prior marriage. Feltman v. Feltman, 434 N.W.2d 590 (S.D. 1989). Thus, an obligor parent is generally not entitled to deduct from income the support provided to subsequent children when determining income available for the support of prior children. Rather, the fact of subsequent children is only a deviation factor only under most states' guidelines. Moreover, a vocal minority of states have taken the position that subsequent children cannot even form the basis for deviation, because a parent should not be able to take on additional child support responsibilities to the possible detriment of children already in need of support. E.g., Illinois ex rel. Graham v. Adams, 239 Ill. App. 3d 643, 608 N.E.2d 614 (1993); In re Marriage of Vucic, 216 Ill. App. 3d 692, 576 N.E.2d 406 (1991); Bock v. Bock, 506 N.W.2d 321 (Minn. Ct. App. 1993); Hayes v. Hayes, 473 N.W.2d 364 (Minn. Ct. App. 1991).
A deviation may be had only where the parent demonstrates that the second family has a significant impact on his or her ability to support the children of the prior marriage. See Allsup v. State ex rel. Salas, 648 So. 2d 597 (Ala. Civ. App. 1994) (while support of new child can be deviation factor, court must be presented with evidence of new child's expenses, other means of support, etc.); State ex rel. O'Neal v. Jones, 646 So. 2d 150 (Ala. Civ. App. 1994) (needs of new child may be considered in deviating from guidelines); Barnes v. State ex rel. Cassady, 636 So. 2d 425 (Ala. Civ. App. 1994) (court may deviate for needs of subsequent children); Loggins v. Houk, 595 So. 2d 488 (Ala. Civ. App. 1991) (court may deviate from guidelines for needs of subsequent children); Howard v. Wiseman, 38 Ark. App. 27, 826 S.W.2d 314 (1992) (child support guideline amount may be adjusted to take into consideration obligations to a current family where strict application of the guidelines would result in hardship to the current family); Clark v. Tabor, 38 Ark. 131, 830 S.W.2d 873 (1992) (child support guideline should be adjusted for subsequent family where ends of justice so require); Robinson v. Robinson, 657 So. 2d 958 (Fla. Dist. Ct. App. 1995) (new children are not a basis for deviation absent special circumstances concerning their support and evidence to support such a claim); Kersh v. Kersh, 613 So. 2d 585 (Fla. Dist. Ct. App. 1993) (needs of new children may be reason to offset increase in income); Reed v. Reed, 597 So. 2d 936 (Fla. Dist. Ct. App. 1992) (it is improper to reduce an award of child support on account of new children without evidence that the parent's ability to pay support has been impaired); Barrs v. Barrs, 590 So. 2d 980 (Fla. Dist. Ct. App. 1991) (court will not deviate for subsequent children without showing of an impaired ability to meet the prior award); State ex rel. Nielsen v. Nielsen, 521 N.W.2d 735 (Iowa 1994) (guidelines permit consideration of subsequent children as deviation factor, but do not require it; citing In re Marriage of Ladely, 469 N.W.2d 663 (Iowa 1991), court reaffirms first in time rule; N.B.: Iowa guidelines since amended to provide for subtraction from income); Greene v. Greene, 634 So. 2d 1286 (La. Ct. App. 1994) (in order for court to consider the needs of a subsequent child, adequate proof of the amount of support paid must be presented); In re Marriage of Cohen, 884 S.W.2d 35 (Mo. Ct. App. 1994) (new child is a factor to consider, but it does not require deviation); Shoemaker v. Shoemaker, 812 S.W.2d 250 (Mo. Ct. App. 1991) (subsequent family obligations does not constitute a change of circumstances or conditions as furnish grounds for modifying support); Lodden v. Lodden, 243 Neb. 14, 497 N.W.2d 59 (1993) (mere fact that former husband contributed to support of subsequently adopted son does not warrant deviation, absent sufficient evidence to rebut presumption established by guideline); Scott v. Scott, 107 Nev. 837, 822 P.2d 654 (1991) (court may deviate for support given to subsequent children as it impacts on ability to provide support); Cox v. Cox, 181 A.D.2d 201, 585 N.Y.S.2d 841 (1992) (the needs of a subsequent child may only be taken into consideration if it is determined by the court, after calculation of the basic child support obligation, that the obligor's share is unjust or inappropriate); White v. Cook, 312 S.C. 352, 440 S.E.2d 391 (1994) (court should consider obligation to subsequent children); Jensen v. Bowcut, 892 P.2d 1053 (Utah Ct. App. 1995) (guidelines do not mandate that a credit be given for children in father's home, but court may consider support to such children in its discretion); Ainsworth v. Ainsworth, 154 Vt. 103, 574 A.2d 772 (1990) (upholding deviation for stepchild of second marriage); Hasty v. Hasty, 828 P.2d 94 (Wyo. 1992) (subsequent children may be reason for deviation, and obligor is entitled to have it considered); see also Miller v. Tashie, 265 Ga. 147, 454 S.E.2d 498 (1995) (increased responsibility for new child constitutes substantial change in circumstances, meeting threshold test for modification); Graham v. Adams, 239 Ill. App. 3d 643, 608 N.E.2d 614 (1993) (court can consider mother's obligation to support children not of the obligor in setting obligor's support); Milewski v. Milewski, 197 A.D.2d 562, 602 N.Y.S.2d 660 (1993) (it was not error for the court to refuse to deviate upward from child support guidelines, on custodial parent's request, given fact that father was responsible for support of other children).
For example, in Molstad v. Molstad, 193 Wis. 2d 602, 535 N.W.2d 63 (Ct. App. 1995), the mother petitioned for a modification of child support, seeking an increase. When she did not get as large an increase as she wanted, she appealed, contending that the trial court improperly considered the needs of the father's new family.
The appellate court confirmed the award of child support. The court held that merely because a parent does not qualify as "serial family payer" under its prior holing of Brown v. Brown, 177 Wis. 2d 512, 503 N.W.2d 280 (Ct. App. 1993), that is, a parent entitled to a deduction from income for preexisting support obligations, does not mean that the court cannot consider the impact a subsequent family might have on a child support obligor's ability to pay support.
Although the existence of a second family does not entitle the paying parent to an automatic reduction of child support to her or her initial family, the court may consider the needs of any person, other than the child, whom either party is legally obligated to support in deciding whether to apply the standards. . . . Thus, the existence of a second family is a factor that may be considered in determining whether the standards should be applied and what the appropriate level of child support should be.
535 N.W.2d at 65. Deviation is thus appropriate when the party seeking a deviation can demonstrate that the needs of the second family have had an impact on his or her ability to support the children.
It is also important to note that even where the fact that a support obligor has subsequent children or stepchild may be a deviation factor, many states provide that the consideration of subsequent children may only be used "defensively" and not "offensively." This means that an obligor may not affirmatively seek a modification of the support obligation on the grounds that he or she has new children from a subsequent marriage or relationship. The obligor may, however, defend a motion for an upward modification of the support obligation on the grounds that he or she has new children from a subsequent marriage or relationship. E.g., In re Marriage of Ansay, 839 P.2d 527 (Colo. Ct. App. 1992); Clowdis v. Earnest, 629 So. 2d 1044 (Fla. Dist. Ct. App. 1993); Bock v. Bock, 506 N.W.2d 321 (Minn. Ct. App. 1993).
Because the doctrine of in loco parentis most often establishes a duty to support a stepchild to the same extent as a natural child, the child support guidelines of the various states should be consistent in their treatment of subsequent stepchild and subsequent children, be it by mandatory deduction to income or deviation factor.
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