Step-Parents and Second Parents–Does Order Matter?

One of the comments on yesterday’s post raised an important question about how parentage via holding out works for step-parents.   This is a question that arises as well with de facto parentage–a doctrine somewhat like holding out.     It’s important and occupies the concurring opinion in the New Mexico case.

Before turning to that, though, there’s another point I’d like to raise.   I’ll deal with this preliminary point in this post and turn to the holding out/step-parent problem in the next.

Here’s the thing:  To my mind Chatterjee (the woman found to be a natural parent in the NM case) isn’t a step-parent.     What does it mean to be a step-parent?  I’m not a fan of resort to on-line dictionaries, but I’ll invoke one here.  A step-parent is a person who marries someone who is already a parent and thereby enters into some sort of relationship with the child.

I think this pretty much reflects what most people think of as a step-parent–a spouse of your parent by a subsequent marriage.  So if your mother marries, the new spouse is a step-parent.  (Note that in same-sex marriage states, that could be either a step-mother or a step-father.)

Now you could, I suppose, say that since Chatterjee and King didn’t and couldn’t get married, Chatterjee couldn’t possibly be a step-parent.   But I find this reasoning really unsatisfying.   Whether or not you are a step-parent ought not (in my mind) to turn on whether you happen to be married or in a domestic partnership or in any sort of formalized union.   (This actually echoes a point Justice Ginsberg made in her opinion in the social security case I wrote about not long ago.)  The key (for me) is the substantive nature of the relationship, not the formalities.   So with this in mind I’m going to skip over the marriage issue.

It seems to me that the idea at the heart of what a of step-parent is necessarily implies a certain order of things.   First, there is a parent/child relationship and then, after that has been established, there is a new adult/adult relationship that bring the new adult in contact with the child.   That new adult is the step-parent.

That’s not the order for Chatterjee and King.   In their case first there was the adult/adult relationship and then a child was added to the family.   That’s pretty much the standard family formation story–the one where a couple has (one way or another) children.  There was no adult/child relationship before there was an adult/adult relationship.  Thus, if Chatterjee is a parent, not a step-parent.

I do understand that King formed a legal relationship before Chatterjee did.   But this doesn’t seem so important to me.   What I care about is less the legal relationships than the social/psychological relationships.    (This is rejecting the formalities in favor of the substance, as I did above in determining that the fact that Chatterjee and King couldn’t marry doesn’t mean that Chatterjee couldn’t be a step-parent.)   And the ordering of social/psychological relationships is clear–first the relationship between the adults and then the adult couple formed relationships with the child.

I think there might be reasons to treat people who are parents differently from people who are step-parents.   (This will lead me to the next post.)  But in doing that you have to be clear about who is in which category and why.   For my money, when a couple adds a child to their relationship as was the case here, neither is a step-parent.

One closing note:   In some states a person in Chatterjee’s position could protect her rights by completing a second-parent adoption.  (I’ve written about these.)   A second-parent adoption is often analogized to a step-parent adoption because in both cases the addition of the second-parent doesn’t extinguish the rights of the first person.   But that is extent of the analogy.   There’s no general assertion that the lesbian partner doing a second-parent adoption is generally like a step-parent.

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15 responses to “Step-Parents and Second Parents–Does Order Matter?

  1. In defining a step parent, I do not think either order is significant, nor is a legal marriage certificate relevant, as long as its a long term committed relationship. The question turns not on order but what how did the person get to assume their parental role?
    A step parent to me is one who assumed their parental role by virture of their relationship with the initial parent, not because an essential connection of their own.
    In the case of a biological mother therefore, I would not consider order significant. The bio mom is the initial parent and the partner’s parental status depends wholly on the bio mom’s consent. When the kid is 8 years old it makes absolutely no difference to them whether the marital (or marital-like) relationship began a year before or a year after their birth. It makes absolutely no sense to assign a parental status based on the adults relationship. It’s a blurring of borders.
    In the case of adoption perhaps order matters because it can be used to ascertain the couple’s intentions at the time of adoption in a sticky case like this were actual joint adoption was prevented.

    • Do we really disagree that much? It seems to me that if a step parent is one who assumes a parental role by virtue of their relationship with the initial parent then there must first be some relationship between the intial parent and the child. Thus, that parent/child relationship precedes the adult relationship that is what makes the step-parent a step parent, no?

      At the same time, I wonder about what you mean by “an essential connection of their [that's the step-parent's] own.” What counts as an essential relationship? It sounds like biology is one source of that. What else? But I’m not sure what you mean about order being insignificant wrt a bio mother. In your view is anyone who is not the bio mother a step-parent? Or anyone who is not themselves a bio parent? If a married couple use third-party sperm as part of a joint endeavor to have a child is the spouse (who is not genetically related) a step-parent? if not, why not? I assume because that spouse has some “essential relationship”? But what is that relationship?

      Underlying your comment is an important question that perhaps I haven’t fully examined–why do we need to make these distinctions. I’m wondering if it is true with an eight year old child it won’t matter whether the person in question came along a year before or a year after the child was born. I think it might matter if there was a different initial co-parent. But that suggests a different direction for definitions. More thought needed here, clearly.

      • Yes by essential connection I mean biological- at least when we are talking about the time of birth.
        I suppose one can also develop an essential connection that eventually stands on its own merit, but that would take a lengthy period of time. That’s your “de facto” doctrine. But At the time of the birth, no such relationship has developed between the partner and the child.

        Yes I consider a legal father (by virtue of being married to the mother) who is not genetically related to the child, to be akin to adoptive parent. I used the word adoptive rather than step parent because and adoptive parent is a legal parent and a step parent is not. I suppose I good make up my own term and call him a statutory parent. If I was making the law I’d say that if the parents divorce while the kid is still a baby, either side has the right to revoke the paternity status. But nobody asked me.

  2. The reason order is usually brought up when talking about step parents is because that is the typical most common case, since most children are born to heterosexuals. that does not make it definitive.

    • I’m not sure what you mean here. Do you mean that since most children are born to heterosexuals they start with two parents and then a step-parent is an additional parent added later?

      Even if I’m wrong about that, though, I think the point that the fact that order may be common doesn’t make it definitive. I suppose mostly what I’ve addressed is how I think people use the terms. When someone tells you
      “X is my step-parent” what are they conveying to you? I think that what they are conveying is that this is not a person who was there from the beginning–which is what I meant to capture in my comments about order.

      Again, this doesn’t really answer the question you raised earlier–does it really matter? I’m inclined to think it does. But I have to agree that there are degrees. A person who arrives on the scene (and steps into a parental role) when a child is months old is in a different place from a person who does the same thing when the child is ten years old. Do those two people even belong in the same category?

      • California Family Code 3101 (2) “Stepparent” means a person who is a party to the marriage that is the subject of the proceeding, with respect to a minor child of the other party to the marriage.

  3. (btw even amongst heterosexuals it sometimes does occur that the step parent enters the biological parent’s life before the kid is born- I believe you posted a case like that from Seattle in which the step dad won parental rights as a de-facto parent AFTER the kid’s birth, the timing of his relationship with the mother was irrelevant.)

    • I suppose I should try to find that case because I’d say that if you are part of a child’s life from day one you aren’t a step-parent. But now I’m thinking about married couple who split before child born and if mother has new partner, what is she/he to child?

  4. Anyone who is living with, or is involved in an ongoing relationship with a person who has offspring, is in a step-parent-like position with that person’s offspring; they are likely on the OK-to-pick-up list for school and other activities and they can take the child to doctor appointments and sign them up for soccer (Julie’s favorite example), but they are not financially obligated to support them the way they would be if they were legally married to the person they are living with or are dating. If they were married the court would calculate the amount of support owed based on the the parent’s joint income with their spouse and the only way for the spouse to escape that financial burden would be to get a divorce. So being a real step parent has legal implications that are a really big deal, where being in a step-parent-like position does not.

    I don’t think that kinship titles of any kind should legally turn on the emotional aspects of a relationship; a parent is a parent with legal obligations whether they have a warm fuzzy caring relationship with their child or not, same goes for being a wife or a brother, an uncle or a grandparent. So their is no qualitative emotional bond required for biological parenthood for legal parenthood, for adoptive parenthood or for step-parenthood or foster parenthood. There are people that feel as if their mother-in-law is more of a mother to them than their own mother ever was. But the legal titles of kinship should not turn on feelings and emotional investments. The title describes people’s legal position in relation to one another and from there they can mean as much or as little to one another as they are willing to invest and withdraw.

    It is not fair to say that a person is a child’s father just because he developed a substantial bond while living with the child’s mother even if he willingly supported the child while they were together and took responsibility for the child as if he were his own….that is all emotional. Legally he never owed her that duty unless he was married to her and he never had a direct duty to support the child because that duty belongs to the child’s father and the child deserves his father’s support specifically. Its wrong to call a man the father of a child born to his wife if the child is not his own offspring because that child deserves to be supported by his actual father and be a part of his own actual family. Her husband should have a duty to support her child only while married to her as the child’s step-parent because the child still qualifies for support from the father as well. The child gets more when people don’t play around with kinship titles based on the level of emotional investment the various parties make. Sure the step father may be more of a father than the father ever will be but that should not mean the father has no responsibilities at all or that the child can just do without being a part of that family.

    Nobody should wind up saddled with the title of parent over a child that is not their own offspring period and nobody should be forced to adopt someone else’s offspring either. Step parenthood is something people can get out of if they choose to parenthood and adoptive parenthood cannot be gotten out of without giving the child up for adoption yourself. That is very serious and everyone involved should know what is going on and have it approved in court. Defacto parenthood is fine for demonstrating that a person is fit to be named as the child’s legal guardian but its a real disservice to the child to have that person fill in the blank as parent because the moment that happens they loose all rights to half of their family and inheritance and support and legally recognized kinship with all their other relatives for other benefits like family leave act etc. It tanks and its short-sighted and selfish, the child looses a lot to feed the ego of the person that is taking care of them. Its a lovely gesture to refer to that person as a parent but it comes at too great a cost to the child – they can refer to them however they want privately but legally they shoult not make a play for the title of parent. I’ve recently talked two women out of having their husband’s named as father on their children’s birth records and I consider that an enormous accomplishment. The fathers are deadbeats but they will die someday and their children deserve to inherit from them if the grandparents left the fathers property or whatever. That struck a chord with them and they changed their minds.

    • But surely the issue here is that it was not possible to establish marital or parental relationship ties legally before the adoption took place, but had it been possible it would have been done at the time. If it had been possible for them to marry and bring up the child together and they would have done at the time then Chatterjee shouldn’t be treated as a step-parent. If it had been possible for them to adopt as a couple then they would both have equal parental rights now and we wouldn’t be discussing this case because legally it would be clear.

      Behaving as if this person hasn’t been acting the role of a parent in the same way as the person who went through the legal adoption, even though they have been living as a couple and co-parenting, does a disservice to the child, who chances are has grown up their whole life thinking of them as a parent. If someone has been put in this difficult legal situation because of prejudice then it’s not OK to treat that relationship as if it means nothing because it wasn’t possible to make the correct legal arrangements – that simply compounds the original prejudice.

      • This does seem like one of those cases where had it been possible for them to jointly adopt in the first place they would have. Then, as you say, they’d both be parents. So does Chatterjee become a step-parent because of Russia’s laws on adoption? That is exactly the sort of “form over substance” decision that I would like to move away from. People work with the law as it is and the real structure of this family wasn’t accurately described by law.

        The form over substance argument is (to my mind) essentially what King argued here. Remember at this stage of the case she offered no facts. So she said no matter what the facts–no matter what Chatterjee’s actual role in the child’s life or how the family functioned–the form (who adopted in Russia) determined the outcome. I’m glad that the NM Supreme Court didn’t go that way.

        As I think about your comment, though, I’m wondering about what assumptions we make about what couples would have done had it been possible. I mean, do we just assume that if they could have (adopted or married) they would have? I’m thinking here about a couple that might not have been able to afford a second adoption proceeding or a couple that might have chosen not to marry. Do we need to decide whether they really would have or consider the particulars of the reasons why they wouldn’t have done it?

    • There’s an important legal concept called “in loco parentis”. That’s typically what gives step-parents (assuming just for a moment that we agree on who they are) legal rights during the duration of their relationship with the legal parent. But to belabor the soccer example, it’s not at all clear to me that a step-parent can sign a kid up for soccer (and I’m even more sure she or he cannot sign a kid up for school) based on that. (The pick-up list is different–a parent can put anyone they want on that list, so it’s not a measure of rights.)

      I’d also distinguish between someone a parent is dating (who won’t have any authority to do any of this) and someone who lives in the household and has a substantive relationship with the child. That’s a critical distinction to observe, I think, and the necessarily fuzzy nature of that line (when are two people actually living together) worries a lot of people.

      I’ve noticed that children distinguish (in their own speech) between “my mother’s boyfriend/girlfriend,” “my mother’s partner/spouse,” “my step-parent,” and “my parent.” And some kids do use “my parent” for a person who we might describe as a step-parent. I think these usages are important and interesting but they can make discussion really confusing.

      The support question is complicated and varies and I’m going to skip it. I cannot recall enough of the details of the law here right now to comment intelligently and with confidence.

      There’s a sentence you have that I think crystalizes our habitual disagreement, though in a slightly different way. You say “I don’t think that kinship titles of any kind should legally turn on the emotional aspects of a relationship.” I’m going to take the liberty of assuming that “emotional” includes “psychological” (and I’m going to assume you will correct me if I am wrong.

      I couldn’t disagree more. I think if we care about the well-being of children then we have to attend to what the real attachments and relationships in their lives and we must protect and respect the those attachments and relationships. Thus, I care about the psychological/social parent/child relationship and I think the law should as well. If the law takes no regard to these relationships we do violence to children.

      It’s true that these are fuzzy and murky. They lack the clarity of genetic relationships. That leads to problems, I know. But I think these problems are what we have to face in order to do what is generally best for kids. We won’t always get it right. There will be bad outcomes. But at least we’ll be aiming at the right goal.

      No one ends up in the psychological role of parent without meaning to be there. I’m not in the least worried about that. (By contrast, you can end up in the role of genetic parent quite unintentionally.)

  5. Julie – agree that the term step-parent does not fit. It is time to rethink and define the different structure of family relationships. I have been trying to read a law commission report 05 from NZ for the last couple of days that is very interesting but long. They don’t address the second parent when it comes to adoption by one partner. But they do talk about both surrogacy and DC when one parent is the genetic parent and the other isn’t and the status of the other parent as a legal parent.

    I think that in the scenario you are speaking to the partner who existed before and after the adoption should be considered a defacto parent and then through his/her actions within the relationship/home is deemed the right to legal parenthood status.

    I like how the NZ report recommends the following on pg 29 to provide proof of a defacto relationship in the nature of marriage in regards to legal parenthood….(vs a transient relationship)

    http://www.nzlii.org/nz/other/nzlc/report/R88/R88.pdf

    (a) the duration of the relationship:
    (b) the nature and extent of common residence:
    (c) whether or not a sexual relationship exists:
    (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
    (e) the ownership, use, and acquisition of property:
    (f) the degree of mutual commitment to a shared life:
    (g) the care and support of children:
    (h) the performance of household duties:
    (i) the reputation and public aspects of the relationship.

    • Thanks for citing to that report–I’ll have to go have a look. Marriage (and other forms of state recognized relationships) are such easy ways to draw the lines, but this list is going to be more inclusive. There will always be people who act like they are married but don’t actually do the deed for one reason or another. The question is how to deal with them.

      Ditto the whole adoption thing. (I know there’s a comment on this somewhere–I have to get to this.) Whether Chatterjee could have completed an adoption on her own or not matters less to me than who the family functioned. That, it seems to me, is what de facto status is all about.

  6. Is it safe to assume that you believe couples who don’t act married should be legally considered single or divorced? Is it safe to assume that you believe people who don’t act like parents should not be legally treated as parents?

    If people can step in and out of legal status on their own without approval from the court it kind of defeats the purpose of having the legal status at all. It would be impossible to hold anyone accountable for fulfilling their obligations if they could just say “well I’m not a parent so I don’t have those obligations. I stopped acting like a parent yesterday, I did not need the court’s approval in order to gain legal recognition as an adoptive parent so I don’t need the courts approval to stop being an adoptive parent.

    How do you see this working if you had your way. Consistency is one thing – one and only thing we see eye to eye on and I bet you can see that self regulated floppiness of that as being problematic from an “if this then that” kind of organized thinking

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