Let’s Talk About… Stepparenting
October 11, 2018
BY: Lesnevich, Marzano-Lesnevich, O'Cathain & O'Cathain
A stepparent is a person who marries a child’s parent by a later marriage. Ideally, a stepparent “steps into” the role of a parent. However, stepparents do not automatically earn the legal rights of biological parents and therefore are not entitled to legal custody or residential custody by virtue of marriage to the child’s parent. For example, medical professionals and school staff are not required to provide information regarding a minor child to a stepparent. Also, if a stepparent and a legal parent divorce, the stepparent typically cannot seek custody of the child absent allegations of abuse or neglect.
How Stepparents Can Get Parental Rights
One of a child’s two legal parents must terminate his or her parental rights and the stepparent must adopt the child in order for the stepparent to be fully recognized as a parent. This termination of parental rights may be done voluntarily or involuntarily. In the absence of the termination of one parent’s rights, it is impossible for a third party to be automatically granted full parental rights under the law. This includes the rights to legal custody and residential custody which must be awarded by the Court or by consent of the parties.
In order for a stepparent to be considered a psychological, or “de facto,” parent and thereby be entitled to legal and residential custody of a child, he or she must:
- (1) Obtain the consent of one biological or adoptive parent
- (2) Be living in the same household as the child
- (3) Have assumed obligations of parenthood; and
- (4) Have developed and maintained a bonded and dependent relationship with the child.
However, being named a psychological parent does not automatically mean the stepparent is entitled to a say over (or in conjunction with) the child’s biological or adoptive parents. It merely means that the stepparent may petition for rights to the Court in the same way biological or adoptive parents can.
At this time, unless a stepparent is able to get a court order awarding him or her custody of a child as the psychological parent, or adopting the child, the stepparent’s rights to the child are extremely limited.
Stepparents and Child Support
Typically, a stepparent has no specific obligation to financially provide for a stepchild. Child support calculations for the child do not take the stepparent’s income or financial situation into account. However, the Supreme Court has previously held that a stepparent may be liable for child support based on equitable considerations if that stepparent affirmatively encouraged the child to rely on and depend on him or her for parental nurture and financial support. By the stepparent’s actions, which could thereby damage the child’s relationship with the child’s biological parent, that stepparent cannot refuse to be financially responsible for the child.
The Importance and Role Of Stepparents
However, it seems that courts are beginning to acknowledge the changing landscape of the “nuclear family.” In an unpublished decision in 2014, the Honorable Lawrence R. Jones, J.S.C. (ret.) explains in great detail how, although stepparents should not automatically become a “third parent” to a child, their roles should be recognized and fostered by the Courts.
Judge Jones specifically found that, in the case where the child has a healthy relationship with both natural parents in addition to a stepparent, that stepparent should not be considered irrelevant or immaterial to the child’s happiness and well-being. The Court acknowledged that the stepparent/child relationship has increasingly been recognized in the law: stepparents are permitted to take paid time off when a step-child is sick, the stepparent may be charged with neglect of the stepchild, and a stepparent’s income may be considered in determining financial eligibility for college tuition assistance. However, while there is a statute guiding the Courts in evaluating whether visitation rights should be granted to grandparents and siblings of a child, there is still no statute in the State of New Jersey which specifically outlines the factors a court must consider in granting visitation rights to a stepparent.
Nearly half the states in America including New York and New Jersey authorize stepparent visitation. About ten of those states explicitly name stepparents as having the right to request visitation and the rest other states list stepparents as “interested third parties.” Some of the remaining states allow stepparents to petition for visitation. Yet, a handful of other states, like Florida, do not recognize any visitation rights of stepparents unless they legally adopt the child.
There is clearly no nation-wide standard of awarding parental rights to stepparents. There is certainly no easy way to determine which stepparents deserve rights and which do not. However, it is clear that there are certain individuals who have impacted a child to the point that the removal of their presence or the trivialization of their role in the child’s life would be detrimental to that child. It is time, at a minimum, for the New Jersey courts, and courts across the country, to give stepparents the opportunity to be granted more legal rights to the children that they help raise. Similarly to how custody is currently determined based upon a “best interests of the child” standard, stepparents should be evaluated based upon factors that take both the generalized needs of children as well as the needs of a specific child’s development into consideration. For the sake of all healthy, blended families, hopefully, legislation will catch up with society, and deserving stepparents are given the chance to be a bigger, more impactful part of their stepchildren’s lives.
Contact Us And Speak With Our Family Attorneys
At Lesnevich, Marzano-Lesnevich, O’Cathain & O’Cathain, LLC, our New Jersey family lawyers are fully dedicated to our clients. Contact us today to schedule a legal consultation with our New Jersey child custody attorneys.