Divorced stepparent who sought custody is responsible for child support

January 12, 2016 | Blog, Child Support, Court Decisions

Icon for author Brian Vertz Brian Vertz

An evolving definition of family is challenging our courts to consider who may legally participate in child-rearing, and who is financially responsible.  The Supreme Court of Pennsylvania took a step on December 29, 2015, by issuing its opinion in A.S. v. I.S., 108 A.3d 1280 (2015).  In its majority opinion, the Court held that a step-parent who vigorously litigated for custody rights (even though he was not biologically related to the child, and had not adopted) could be held liable for child support. One of the Justices dissented.  Notably, at the time of the decision, there were only five Justices in office, of which four participated in the case.  The majority opinion was supported by the author and two other Justices; the dissent was an individual Justice.  There are seven Justices when the Court is fully staffed.

The mother of twin sons married a man who was not their father when the boys were 7 years old.  Mother and stepfather were married in their native country, Serbia; and the children’s father stopped seeing them shortly afterward.  Stepfather did not adopt the boys but acted in a parental role during the short marriage, which lasted for just four years.  The biological father came back into the children’s lives after the mother and stepfather separated.

Mother decided to move to California in order to take the bar exam and start her career.  Stepfather attempted to block her by filing a complaint for custody and emergency petition to prevent relocation of the children. On a temporary basis, the Montgomery County court prohibited mother from moving the children, and granted temporary partial custody to the stepfather (who was pursuing a divorce from mother).

Mother contested stepfather’s standing to pursue custody, while stepfather argued that he stood in loco parentis. After a full custody hearing, the trial court granted shared legal custody and equal physical custody to mother and stepfather.  Mother’s request for relocation to California was denied.

While the custody action was proceeding, Mother filed a child support action against stepfather.  The hearing officer dismissed the action, reasoning that stepfather had no legal duty. Mother filed exceptions, which were dismissed by the trial court. Both the hearing officer and trial court cited case law holding that stepparents are not liable for child support.  The Superior Court affirmed.

In his majority opinion, Justice Max Baer weighed the lower courts’ decisions against mother’s argument: that the court may hold a stepparent financial responsible, even if the stepparent has not adopted the child, in a narrow case where the stepparent has vigorously sought custody rights.  The precedent for this principle was L.S.K. v. H.A.N., 813 A.2d 872 (Pa.Super.2002), in which a same-sex partner of children conceived through alternative reproductive technologies was held liable for child support. Justice Baer reviewed this case as presenting a novel question never before considered by the Supreme Court.

The laws that govern child support do not define “parents,” the Court observed, and the laws that are related to child support do not supply adequate definitions, he held.  “Rather, courts have looked to whether a nonparent has taken affirmative steps to act as a legal parent so that he or she should be treated as a legal parent.”  Justice Baer then referenced the opinion that he previously issued in K.E.M. v. P.C.S., where he held that adults who act like parents should be precluded from denying paternity if that would be in the child’s best interest.

Having concluded that stepparents who seek legal rights may be held financially responsible, Justice Baer agreed with the mother that the child support guidelines would apply in calculating the magnitude of the obligation. The case was remanded to Montgomery County for a determination of child support.

The dissenting opinion of Justice Saylor argued that the majority opinion supported a loose interpretation of precedent; and that it failed to impose the same heavy burden that stepparents must carry to win custody rights.

What is almost as interesting as the opinion is this question: would the Court have reached the same result if the case had been held for 2 more days, when three new Justices were sworn in?  Perhaps time will tell.

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