Stepparents: The Legal Problem That Has No Name
This is the third in a series by Berkeley faculty focusing on the troubled state of American families and calling for new policies directed toward helping children.
The authors were brought together from across campus through an interdisciplinary seminar, the Berkeley Forum on the Family. They are among 11 faculty who have collaborated on a book, All Our Families: New Policies for a New Century. These essays, written for Berkeleyan, are aimed at bringing the forum debates to a larger campus audience.
by Mary Ann Mason, Professor of Law and Social Welfare
Cinderella had one, so did Snow White and Hansel and Gretel. Our traditional fairy tales are filled with evil stepmothers. We learn from the stories read to us as children that stepparents, particularly stepmothers, are not to be trusted. They may pretend to love us in front of our biological parent, but the moment our real parent is out of sight, they will treat us cruelly and shower their own children with kindnesses.
Few modern childrens tales paint stepparents so harshly. Still the negative image of stepparents lingers in public policy. While the rights and obligations of biological parents, wed or unwed, have been greatly strengthened in recent years, stepparents have been virtually ignored.
Rarely do policy-makers consider the fact that one-fourth of U.S. children born in the early 1980s will live with a stepparent before they reach adulthood. Moreover, these numbers are likely to increase in the future, at least as long as the number of single-parent families continues to grow.
In light of these demographic trends, federal and state policies affecting families and children, as well as policies governing private-sector employee benefits, insurance and other critical areas of everyday life need to be changed to address the concerns of modern stepfamilies.
Presently, there is little support for intact stepfamilies. The stepparent is considered a legal stranger with no rights or obligations to the children he parents. A stepparent is not obliged to support his or her stepchildren, nor does he have any legal authority over them. A stepparent cannot, for instance, sign a field trip permission slip, or ask a doctor for a prescription for the children she helps parent. And there is no safety net for children when their stepfamilies collapse through divorce or death. Such collapse often propels the stepchildren into poverty.
For natural parents and their children, support obligations and custody and inheritance rights exist by virtue of a biological tie alone, regardless of the quality of social or emotional bonds, and regardless of whether the parents are married.
A similar safety net is needed for stepparents and their children. By conservative measure, 20 to 30 percent of stepchildren under 18 will see their custodial parent and stepparent divorce. This is yet another disruptive transition for children, most of whom have already undergone at least one divorce.
How can policy and the law help this vulnerable group of children?
I propose that we legally recognize the actual dependency of stepchildren by creating a defacto parent. This new legal parent would be obligated to support stepchildren during the marriage and for a period of time after divorce (depending on the length of marriage). Medical and other benefits would also be extended, and inheritance and life insurance rights would be awarded to dependent stepchildren.
Conversely, the stepparent role would be strengthened by granting parental legal authority during the marriage, and the right to seek visitation in the event of divorce.
Our on-going stepfamily interview project here supports the validity of the de facto parental role. We find that, in addition to economic support, stepparents offer nearly the same level of caregiving to their residential stepchildren as do natural parents.
On measures of providing transportation and help with homework, and other caregiving tasks, stepparents score well in comparison to biological parents. They and their spouses perceive themselves as parental figures. Their status as parents is different, but their role as parents in actual child-rearing activities is the same as that of the biological parent.
Most critically, millions of stepchildren depend for their daily support on these legal strangers who have no name in the law. We need to make them all parents and children alike more secure.
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