According to a recent report from the Pew Research Center, less than half of U.S. kids younger than 18 live in a “traditional family” household.
Today, 15 percent of children are living with two parents who are in a remarriage. According to data from the 2013 Current Population Survey, six percent of all children are living with a stepparent.
Exact numbers about the number of stepchildren are hazy (in 2011, the National Healthy Marriage Resource Center estimated that number to be between 10 and 20 percent), but with remarriages on the rise, it stands to reason that the number of stepfamilies is also increasing.
Unfortunately, although a stepparent can play a crucial role in raising a child, they rarely factor into legal decisions regarding the stepchild.
Family law focuses primarily on protecting marriage and traditional families. Stepfamilies, it seems, are considered more problematic and often underrepresented. Here are some key issues to keep in mind when considering stepparents’ rights.
Stepparents’ Child Custody Issues
Unless a stepparent has legally adopted a stepchild, they likely have no legal right to make decisions on behalf of the child’s well-being. They have no say in the child’s medical decisions, who has access to the child, or educational decisions regarding the child.
Some states, such as Arizona, do allow the rights of the natural parents or legal guardian to be transferred to the stepparent through a Power of Attorney form. But not all states will accept the Power of Attorney form and they are often limited in time and what they allow. In Arizona, they are only valid for a maximum of six months.
Courts do tend to be more lenient in regards to visitation rights. In recent years, laws have been enacted to grant grandparents visitation rights and stepparents have fought for the same privilege.
Now nearly half the states (23) have laws authorizing stepparent visitation. Ten of those states explicitly name stepparents as having the right to request visitation and 13 other states list stepparents as “interested third parties.” Five other states allow stepparents to petition for visitation.
Still, a handful of other states, like Florida, do not recognize any visitation rights of stepparents.
Stepparents’ Financial Responsibilities and Child Support Issues
According to common law, a stepparent has no legal obligation to support his or her stepchildren. There are two exceptions:
There is a state statute imposing such a duty. (There are 20 such states.)
A stepparent undertakes to act In Loco Parentis to the child. In Loco Parentis refers to the legal responsibility of a person or organization to take on some of the functions and responsibilities of a parent, such as when the biological parent is unable to financially support their child.
Depending on state law, stepparents could also impact the amount of child support a stepchild receives from each parent.
Consider this hypothetical: Two biological parents divorce and Dad ends up getting remarried. He and his new spouse are both employed. The biological mother could then file a motion asking the court to increase the amount of child support the biological father is paying since his living expenses have been reduced because of the income the stepmom is bringing in.
Because states have the right to make differing family laws, exactly what financial obligation a stepparent has to his or her stepchild can become even more confusing when families move across state lines.
Stepparents’ Estate Planning Issues
A number of studies show that the majority of people die without a valid will. When this happens in stepfamilies, it can leave a mess of problems to unravel.
A recent trust case from North Dakota shows the complexities of estate planning in blended families. William and Patricia Clairmont drafted two trusts for their grandson, Matthew. In both trusts, Matthew’s “brothers and sisters” were designated as trust beneficiaries if Matthew died.
But after the trusts were created, the Clairmont’s daughter, Cindy, divorced Matthew’s father, Greg. Greg eventually remarried and had two children with his second wife.
Matthew died unexpectedly in March of 2011 without a wife, children or will. Under North Dakota law, Greg’s children with his second wife were considered Matthew’s “brothers and sisters” and eligible beneficiaries under the trusts.
When a stepparent dies, their stepchild has no legal right to a stepparent’s inheritance if there was no will left behind. However uncomfortable it might be, it is critically important to review your estate plan in the event of remarriage and make sure its terms are clearly defined.
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