From the Family Law Letter May - June 2003

Stepparents’ Rights

What are the rights—and responsibilities—of a stepparent when a marriage ends?

Nine years ago, David met Heather and her two year old son Jason. Soon they became inseparable. David and Heather married, and Jason grew up thinking of David as his father. Then time passed, things changed, and Heather filed for divorce. David wants to maintain his relationship with Jason, but Heather wants to keep them apart. What are David’s legal rights as Jason’s stepfather?

If David had adopted Jason, their relationship under the law would be as if they were biological parent and child. But since Jason’s biological father is living, adoption would have required termination of his parental rights. David, to his regret, chose not to pursue this course of action.

Where a stepparent, like David, has not adopted a child, New Hampshire Courts are guided in deciding custody disputes by the principle of the best interests of the child. In general this means if the stepparent and child have a close relationship and the child tends to view the stepparent in much the same way as a biological parent, then the stepparent will have custodial rights to the child, and may even be awarded primary physical custody, if such rights are sought by the stepparent during the divorce process. See RSA 458:17 and Stanley D. v. Deborah D., 124 N.H. 138 (1983).

When the parties in a divorce do not agree as to whether the continuation of the relationship between a child and stepparent is in the best interests of the child, this decision is made by the Court with the participation of a guardian ad litem, or GAL. A GAL is a specially qualified person appointed by the Court to look into the circumstances of a case, report findings, and make recommendations. In a case like David’s, the GAL would meet with the child, with all the parents involved, and with teachers, neighbors, friends, and others who could shed light on the situation. Then the GAL would report findings and recommendations to the Court and to the attorneys representing the parties. Usually the Court will adopt the findings of the GAL.

Note that stepparent rights come with stepparent responsibilities. Until the custodial parent and stepparent (Heather and David, in our example) are actually divorced, the stepparent has a relationship with the child that is recognized under the law, and may be required to pay child support as long as the divorce is pending. Such an obligation may even continue after the divorce is final, especially if the stepparent is awarded visitation rights. See RSA 546-A:3. However, if the child’s biological parent is paying child support, the stepparent may not be required to.

In the case of In re Shelby R., 148 N.H. 237 (2002) the New Hampshire Supreme Court held “As stepparents have a significant private interest in preserving and protecting family life, we conclude they are entitled to protection under Part I, Article 15 of the State Constitution. Our view is consistent with the fact that stepparents are a commonplace presence in the nuclear family and that ‘the New Hampshire Legislature and Judiciary have consistently expanded the rights and duties of stepparents.’ Bodwell v. Brooks, 141 N.H. 508, (1996). Additionally, stepparents who demonstrate a full commitment to raising and caring for their stepchildren are generally charged with the rights and duties attributed to natural parents. See id. at 513.”

In New Hampshire, the legal right of a stepparent to maintain a relationship with a stepchild during and after a divorce depends on two factors: the closeness of the parenting relationship before the divorce, and the stepparent asserting his or her desire to maintain that relationship, and seeking appropriate legal relief, during divorce proceedings. There is no question that David has a close relationship with Jason; as a practical matter, his right to maintain that relationship could depend on the effectiveness of his legal representation.