[ Pobierz całość w formacie PDF ]

he or she may apply for a visitation order.
The third group, whom I call reformists, believe that voluntary acts on the part of
stepparents are not always adequate, and that it is necessary to reform the law in some
way to more clearly define the rights and responsibilities of stepparents. The American
Bar Association Family Law Section has been working for some years on a proposed
Model Act to suggest legislative reforms regarding stepparents obligations to provide
child support and rights to discipline, visitation, and custody. A Model Act is not binding
anywhere; it is simply a model for all states to consider. Traditionally, however, Model
Acts have been very influential in guiding state legislative reform. In its current form,
the ABA Model Act would require stepparents to assume a duty of support during the
duration of the remarriage only if the child is not adequately supported by the custo-
dial and noncustodial parent. The issue is ultimately left to the discretion of the family
court, but the Model Act does not require that the stepparent would need to have a
close relationship with a stepchild before a support duty is imposed. The Model Act,
however, does not describe what the rule should be if the stepparent and the custodial
parent divorce.
The proposed statute is rather more complete in its discussion of stepparent visita-
tion or custody rights following divorce. It takes a two-tiered approach, first asking if the
stepparent has standing (a legal basis) to seek visitation and then asking if the visitation
would be in the best interests of the child. The standing question is to be resolved
with reference to five factors, which essentially examine the role of the stepparent in
the child s life (almost an in loco parentis question), the financial support offered by the
stepparent, and the detriment to the child from denying visitation. The court, if it finds
standing, then completes the analysis with the best interests standard of the jurisdiction.
The Model Act s section on physical custody also requires a two-tiered test, requiring
standing and increasing the burden on the stepparent to present clear and convincing
proof that he or she is the better custodial parent.
The ABA Model Act is a worthwhile start, in my opinion, but it is little more than
that. At most it moves away from a stranger model and provides a limited concept of
mandatory stepparent support during a marriage, acknowledging that stepchildren are
at least sometimes dependent. It also gives a stepparent a fighting chance for visitation
or custody following a divorce. It fails to clarify stepparents rights during the marriage,
however, and does not deal with the issue of economic support at the period of maximum
vulnerability, the termination of the marriage through death and divorce. Moreover, the
Model Act, and, indeed, all the existing reform proposals, deal only with traditional legal
concepts of parenthood defined by each state and do not consider the vast range of fed-
eral programs, or other public and private programs, that define the stepparent-stepchild
relationship for purposes of benefits, insurance, or other purposes.
I propose, instead, a new conceptualization of stepparent rights and responsibilities,
a de facto parent model, that will cover all aspects of the stepparent-stepchild relation-
ship and will extend to federal and private policy as well. My first concern in proposing
a new framework is the welfare of the stepchildren, which is not adequately dealt with in
either the stranger or the dependency model. The failure of state and, to a lesser extent,
federal policy to address coherently the financial interdependencies of step relationships,
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Chapter 6 " Divorce and Remarriage 245
described earlier in this [reading], means that children dependent upon a residential step-
parent may not receive adequate support or benefits from that parent during the marriage,
and they may not be protected economically in the event of divorce or parental death.
The longitudinal studies of families described earlier in this [reading] suggest that
the most difficult periods for children are those of marital transition, for example, di-
vorce and remarriage. Families with a residential stepfather have a much higher family
income than mother-headed single families; indeed, their household incomes look much
like nuclear families.39 However, research demonstrates that stepfamilies are fragile and
are more likely to terminate in divorce than biological families. The event of divorce
can quite suddenly pull the resources available for the children back to the single-parent
level. Currently children are at least financially cushioned by child support following the
divorce of their biological parents, but have no protective support following the breakup
of their stepfamily. Nor are they protected in the event of the death of the stepparent, [ Pobierz całość w formacie PDF ]