Unique Case of Stepparent Owing Child Support to Stepchildren.Pdf

The Oldest Law Journal in the United States 1843-2015 philadelphia, tuesday, february 16, 2016 VOL 253 • NO. 30

Family Law Unique Case of Stepparent Owing Child Support to Stepchildren

By MICHAEL E. BERTIN Pursuant to a temporary custody agreement Michael E. Bertin is Special to the Legal approved by the court, the mother had primary a partner at the law firm physical custody of the children and the stepfa- of Obermayer Rebmann n Pennsylvania, generally, a stepparent is ther enjoyed partial custody of the boys every Maxwell & Hippel. Bertin other weekend and every Wednesday night. not liable for child support of his or her is co-author of the book Istepchildren. The mere existence of a rela- “Pennsylvania Child Approximately six months later, the trial court tionship between a child and the stepparent is Custody Law, Practice, denied the mother’s motion to dismiss the step- insufficient to establish a support obligation for and Procedure.” Bertin is father’s complaint for a lack of standing, as the the stepparents, even if the stepparent is found a fellow of the American court concluded that “stepfather stood in loco to be in loco parentis to the child. The recent Academy of Matrimonial Lawyers, a former chair parentis to the children.” After a full custody Pennsylvania Supreme Court case of A.S. v. of the family law section of the Philadelphia Bar hearing in July 2013, the court entered an order I.S., 2015 Pa LEXIS 3129, 8 MAP 2015 (Pa. Association, the current co-chair of its custody granting the parties shared legal custody as well Dec. 29, 2015), has sent shock waves through committee, and holds the officer position of secretary the family law community. However, it is to be of the family law section of the Pennsylvania Bar noted that the Supreme Court does not appear to Association. Bertin can be reached at 215-665- want the opinion to send shock waves through 3280 or [email protected]. It is important to note that the family law community and create “a new class of stepparent obligors” and be interpreted together in Pennsylvania for four years. After the Supreme Court was clear as holding in loco parentis standing alone to the parties separated in 2009, the mother that it was not seeking to open be sufficient to hold the stepparent liable for and the stepfather “informally shared physi- support. Therefore, the A.S. case is not to be cal custody of the children who were about the floodgates and create many broadly applied. 11 years of age,” the opinion said. The step- stepparent support obligors. The pertinent facts of the case are as fol- father formally filed for divorce in 2010. In lows: I.S. (the mother) and A.S. (the stepfa- 2012, the mother graduated from law school ther) were married in 2005. Prior to the par- and took the California bar examination­ as shared physical custody on an alternating ties’ marriage, the mother gave birth to twin planning to relocate to California with the week basis. The trial court also “prohibited boys in Serbia in 1998. Since 2006, the bio- ­children in September 2012, the opinion said. either party from relocating with the children logical father of the twin boys has not been In August 2012, the stepfather filed a com- without permission of the other party or the involved with the children and though there plaint for custody and an emergency petition court,” pursuant to the opinion. is a Serbian court order ­between the mother to prevent the mother from relocating with When the trial court granted the stepfather’s and the biological father pertaining to cus- the children to California and asserted that he emergency petition to prevent the mother from tody and child support, the mother has never stood in loco parentis to the children. On an relocating to California, the mother filed for sought to enforce child support against the emergency basis, the trial court granted the child support against the stepfather approxi- father and the father has not sought to act on stepfather’s emergency petition and prohib- mately four days after the trial court order. The his custodial rights. After the parties married ited the mother from leaving the jurisdiction mother’s support complaint was dismissed by in 2005, the mother and the stepfather lived with the children. the support master, “reasoning that stepfather owed no duty to support the children because deemed a “parent” for child support purposes and intend to be a stable fixture in the child’s he is not their biological father.” Thereafter, the as “encompassing more than biological or life would take the steps to litigate and obtain mother filed exceptions “contending that the adoptive parents.” In focusing on paternity rights equal to those of the child’s parent.” stepfather should be treated as a biological par- by estoppel cases, the Supreme Court justices After holding that the stepfather was liable ent for purposes of support because he litigated highlighted that they “have found a steppar- for child support, the Supreme Court held that and obtained the same legal and physical cus- ent could be liable for child support where he the typical support procedures should be ap- tody rights as a biological parent, and, further, has held a child out as his legal child.” The plied to the case with regard to the calculation successfully prevented mother from relocating Supreme Court examined the Superior Court of child support. with the children.” case law where it determined that the mere This case is a very important case for The trial court affirmed the master’s deci- existence of a relationship between a steppar- the family law practitioner and the family sion to dismiss the mother’s support complaint, ent and a child through in loco parentis status court bench. It is important to note that based upon the precedent in Pennsylvania that is “insufficient to establish the support obliga- the Supreme Court was clear that it was “a stepparent generally is not liable for child tion for the stepparent.” not seeking to open the floodgates and cre- support following the dissolution of a mar- In reviewing the Pennsylvania case law, ate many stepparent support obligors. This riage,” according to the opinion. the Supreme Court reiterated that “in loco case was a very fact-sensitive case, and The mother appealed the trial court’s deci- parentis status alone and/or reasonable acts should only be applied in cases with simi- sion to the Superior Court and the Superior to maintain a post-separation relationship lar circumstances where a stepparent goes Court affirmed the trial court finding that no with stepchildren are insufficient to obligate through extreme efforts to gain equal or duty of support existed. The Supreme Court a stepparent to pay child support for those primary physical custody and equal or sole thereafter granted the mother’s petition for children.” However, the Supreme Court dif- legal custody. Further, additional exertions allowance of appeal, raising the following ferentiated A.S. from the situation where a of custodial rights have to occur, such as primary issue: “Whether, under Pennsylvania stepparent merely has in loco parentis status preventing a parent from relocating. In such law, a former stepparent who has pursued and alone and takes reasonable acts to maintain instances, in following the A.S. case, a child established equal parental rights as the chil- a relationship with the stepchildren. In A.S., support order entered against the stepparent dren’s natural parent—and per a court order, according to the opinion, the stepfather was may occur. Interestingly, as reflected in the equally shares physical and legal custody involved in a “relentless pursuit” of parental opinion, simply finding that the stepfather with the natural parent—should be relieved duties and “haled a fit parent into court, re- had a duty to support did not necessarily of the duty to contribute to the children’s peatedly litigating to achieve the same legal mean that he will actually owe the mother support.” On appeal, the mother analogized and physical and custodial rights as would child support, as the guidelines will apply her case to the Superior Court case of L.S.K. naturally accrue to any biological parent.” regarding the parties’ incomes, and who has v. H.A.N., 813 A.2d 872 (Pa. Super. 2002). In The Supreme Court went so far as stating: been the primary custodian during the rel- L.S.K., “a woman was liable for child support “This is not the ‘typical case’ of a stepparent evant periods (recognizing that stepfather at for five children born to her former same-sex who has grown to love his stepchildren and one point has become the primary custodian partner using a sperm donor where the par- wants to maintain a post-separation relation- of the children). • ties agreed to start a family together and both ship with them.” The stepfather also pre- women acted as the children’s parents.” The vented “a confident biological mother from nonbiological mother in the L.S.K. case “had relocating with her children.” obtained custodial rights to the children based In finding the stepfather liable for child on in loco parentis standing,” and the court support in the present case, the Supreme stated “equity mandates that [the nonbiologi- Court stated: “When a stepparent does sub- cal mother] cannot maintain the status of in stantially more than offer gratuitous love and loco parentis pursuant to an action as to the care for his stepchildren, when he instigates children, alleging she has acquired rights in litigation to achieve all the rights of par- relation to them and at the same time deny enthood at the cost of interfering with the any obligation for support merely because rights of a fit parent, then the same type of there was no agreement to do so.” policy attended to the doctrine of paternity The Supreme Court in the A.S. case fo- by estoppel is implicated: that it is in the cused on the support statute as well as pa- best interest of the children to have stability ternity by estoppel jurisprudence. As stated and continuity in their parent-child relation- Reprinted with permission from the February 16, 2016 in the Supreme Court’s opinion, “The statute ships.” The Supreme Court further stated: edition of The Legal Intelligencer © 2016 ALM provides that ‘parents are ­liable for the sup- “By holding a person such as stepfather liable Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For port of their children.’” The Supreme Court for child support, we increase the likelihood information, contact 877-257-3382, [email protected] or highlighted that cases in Pennsylvania had that only individuals who are truly dedicated visit www.almreprints.com. # 201-02-16-09