By:   Susan L. Pollet, Esq.

According to the statistics, approximately 50% of U.S. marriages end in divorce, 60% of second marriages end in divorce, and about 43% of marriages are remarriages for at least one party.  While the statistics vary, estimates are that as many as one in three American children now can expect to spend some of their childhood years living with a stepparent.  A stepparent has been defined as a person married to the legal (natural or adoptive) parent of a child.  There are stepparents who legally adopt their stepchildren, and they are treated as biological parents under the law.  A more expansive definition of a stepparent includes live-in girlfriends and boy friends.

For at least the last decade, legal commentators have noted that while stepparents often play an important role in their stepchildren’s lives, overall there is a lack of legal recognition of the stepparent/stepchild relationship.  It has been argued that residential stepparents generally have fewer rights than legal guardians or foster parents.

With regard to custody and visitation rights, courts generally have less difficulty awarding a stepparent visitation rather than custody.  Only about one-third of states provide for visitation by stepparents in their legislation.  All of the statutes contain a requirement, either expressly or implicitly, that visitation must be in the best interests of the child, and some state laws impose additional conditions.

With regard to child support, at common law, the relationship of stepparent and stepchild did not, of itself, confer any rights or impose any duties.  A stepparent is obligated to support a stepchild during the marriage where there is a statute imposing such a duty, or the stepparent undertakes to act in loco parentis to the child.  There are states with specific statutes dealing with the issue, and in certain states, if a stepparent voluntarily received a stepchild into his or her family and treated the stepchild as a member thereof, he or she could be placed in loco parentis and assume an obligation to maintain and support the child.

With regard to inheritance rights, a commentator noted that the large majority of people die intestate, and thus state law, rather than a will, determines who inherits a decedent’s estate.  Consequently, unadopted stepchildren often do not inherit from their stepparents because most intestacy schemes limit distribution of a decedent’s estate to individuals who were either related to a decedent by blood or were legally adopted by a decedent.  Stepparents always have the option to write wills in which they can specifically provide their unadopted stepchildren with inheritance rights, no matter which type of relationship the stepfamilies form.