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Articles |  |
| Grandparent Visitation Rights |
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| by Laura W. Morgan, J.D. |
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| The United States Supreme Court heard arguments on January 12, 2000, in the case of Troxel v. Granville. In this case, the Court will consider the rights of grandparents, and perhaps other third parties such as former stepparents, to visit children over the objection of the children's biological or adoptive parents. It is one of the rare times the Court will consider family law, and it could prove decisive in how the states must define a "family" and how far states will be permitted to intrude into family life.Historically, grandparents had absolutely no right to visit or communicate with a grandchild when a parent forbade such contact. In the 1970s and 1980s, however, all states enacted legislation that granted grandparents and/or third parties visitation rights. The states justified these statutes under its authority as parens patriae, that is, its authority to act in the best interests of its children citizens.The statutes granting grandparents the right to petition for visitation fall into two general categories. Under the first most typical kind, grandparents may petition for visitation of their grandchildren only where there has been some kind of disruption of the "intact family," i.e., divorce, death of a parent, adoption, or termination of parental rights. This type of statute has been enacted in Alabama, Alaska, Arkansas, California, Colorado, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansa, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Texas, Virginia, West Virginia and Wyoming. Under the second kind of statute, there does not need to be any kind of disruption of the intact family. Rather, a grandparent can petition for visitation so long as such visitation would be in the best interests of the child. This type of statute was enacted in Connecticut, Delaware, Idaho, Kentucky, Montana, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Washington and Wisconsin.In recent years, the second type of statute has come under attack as being and unconstitutional infringement upon the right of the parents to decide with whom their children may associate. The Wisconsin Court of Appeals was the first state to agree with this argument, and decided that the grandparent visitation statute was unconstitutional. Soon thereafter, the courts in Connecticut, Kentucky, North Dakota, Tennessee and Washington held their statutes unconstitutional as applied.Given the trend of courts finding greater parental authority and autonomy, the first type of statute also cam under attack. The courts in Florida, Georgia and Nevada also held their grandparent visitation statutes unconstitutional, and the court in Virginia restricted the rights of grandparents under the Virginia statute by holding that the grandparents must prove not just that visitation would be in the best interests of the children, but that they would suffer harm if visitation were not granted.When the United States Supreme Court makes its decision in Troxel, the state legislatures will have to revisit their own grandparent visitation statutes and third-party visitation statutes to make sure that the circumstances under which grandparents may petition for visitation does not violate the fundamental rights of the parents of the children to raise their children as they see fit.No matter what the Supreme Court decides, however, concerning when a grandparent or other third-party may petition for visitation of children, visitation must always be in the best interests of the child. The starting point for determining whether grandparent visitation will serve the best interests of the child is to analyze the grandparent-grandchild relationship. Courts examine the length of the relationship and frequency of actual contact as primary evidence that the relationship should be preserved. A grandparent's mere desire for a relationship, when none exists, is generally not sufficient to impose visitation over the objections of the parents. The hostility of the parents to the grandparents is also an extremely important factor, although it is not an overriding factor. Obviously, if the grandparents were driven to bring a lawsuit against the parents for visitation, there is hostility. It is up to the court to determine whether the hostility is deep-seated, or just the inevitable result of friction over the lawsuit at issue. Finally, the court will look at the totality of the circumstances, considering tangential relationships and the family unit as a whole.Many lawyers and psychologists agree that grandparent visitation cases are often just vicious family disputes that replay old hurts, force neutral parties to pick sides and, worst of all, place children into the heart of adult conflicts. For this reason, all agree that grandparent visitation cases should be limited to those cases where the grandparents and grandchildren know each other well and have a deep existing bond.The New Hampshire grandparent visitation statute lists seven factors for the court to consider, and most courts do consider these factors: (1) whether the visitation would interfere with any parent-child relationship or with the parent's authority of the child; (2) the nature of the relationship between the grandparent and the minor child, including the frequency of contact, whether the child has lived with the grandparent, and whether there is reason to believe the child would be endangered by visitation or lack of visitation; (3) the nature of the relationship between the grandparent and the parent of the child; (4) circumstances which resulted in the absence of a nuclear family; (5) the recommendation of the guardian ad litem; (6) any preference expressed by the child; (7) other factors as the court may find appropriate.These same factors may be applied to other third-party visitation requests.By the time a grandparent feels it is necessary to file a court case to force visitation with a grandchild over the objections of a parent, the rancor and hostility between the parents and grandparents are likely to be high. Mediation is often helpful in these situations, to help both sides see the positive aspects of continuing the grandparent-grandchild bond and the need to respect parental authority. Overriding both these considerations, however, must be in the best interests of the child. |
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| What is My Legal Obligation to Support My Stepchild? | ||
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| by Laura W. Morgan, J.D. | ||
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The most common question stepparents have regarding their stepchildren is, "What is my legal obligation to support my stepchild?" Although the question is simple and straight-forward, like so many other issues in the law, the answer is complex and will depend on a number of specific facts.Generally, under the common law (that is, in the absence of a statute), a stepparent has no duty to financially support a stepchild during the marriage to the child's natural parent. The relationship of stepparent and stepchild does not, in and of itself, create any obligation of support. The natural parents always have the primary duty to support his or her own, natural child, and any liability that a stepparent might have (see below) is a secondary duty.The stepparent does, however, have a duty to support a stepchild when there is a statute imposing such a duty or when the stepparent acts in loco parentis (in the place of a parent) to the child. Twenty states have a specific statute imposing a duy on a stepparent to support a stepchild for so long as the stepchild is a member of the household of the stepparent: Delaware, Hawaii, Iowa, Kentucky, Maine, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Vermont and Washington.Regardless of whether a state has a statute imposing on a stepparent the duty to support a stepchild, all states impose such a duty under the doctrine of in loco parentis. The in loco parentis doctrine states that if a stepparent takes a stepchild into his/her family or under his/her care in such a way that he or she places him/herself in the place of a parent, then the stepparent assumes an obligation to support the stepchild.The doctrine of in loco parentis is termed an "equitable" doctrine, meaning it will be applied if it is fair to do so under the circumstances of the case. It is not a hard and fast rule. Generally, the doctrine of in loco parentis is applied when an intent to create an in loco parentis relationship has been manifested; that is, there is an intent by the stepparent to act as a parent to the child. The in loco parentis relationship will generally terminate when the stepparent leaves the home or the stepchild leaves the home.| Top of Page | |
| I Didn't Know How To Be A Stepfather |
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| by Benjamin Spock, M.D. |
| Reprinted from REDBOOK, September 1985 |
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| I wrote an article once about the problems of stepparents that I thought contained a lot of wisdom. But nine years ago, when I myself became stepfather to an 11-year-old girl, I found I didn't know beans about actually being one. Frustrated and unhappy, I visited a counselor who specializes in such matters. She gave me hope. I had been living in a fool's paradise, she told me, naively thinking that any child would accept a stepparent in just a year or two. Feeling better, I settled down to work on the problem, with the help of a family therapist and the insights provided in the many books and articles that I read on this subject.I'll start by boldly declaring that the step-relationship is just naturally accursed, just naturally poisonous. It's no accident that the villains in so many fairy tales are wicked stepmothers or cruel stepfathers. Stepparents seem evil to the children involved. After all, the children didn't fall in love with this outsider or give this interloper permission to take up half of the true parent's attention. And the stepparent often barges into the family at a time when the children and parent have become unusually close because of the divorce, or the death of the other parent. So the stepparent stirs up intense jealousy and resentment. To justify these feelings, the children exaggerate the stepparent's defects and ignore his or her good qualities.I'm focusing on the negatives, of course. Children are sometimes quite cordial to the stepparent. But beneath the surface, the readiness to turn bitter is usually lurking, and may show up as uncooperativeness or rudeness. Sooner or later this gets under the skin of the stepparent, even if he or she is understanding and patient. The stepparent eventually gets cross, perhaps openly angry, and starts to seem disapproving of the children, who, seeing this as proof of hostility, start behaving even worse.The stepparent then reproaches the parent for having brought up such badly behaved children and asks that they be corrected. The children, therefore, think that the stepparent is trying to turn their parent against them. The unhappy parent feels torn. To make a move in either direction is certain to hurt and alienate someone.What I've described is a typical situation; it certainly was mine. Ginger, my stepdaughter, had her mother pretty much to herself - in the sense of having no serious cempetitor - from the age of seven, when her parents were divorced, until I stepped in four years later.Mary and I fell in love when we first met at a conference in California, so we were partly committed before Ginger even had a chance to meet me. From the start she was robbed of any participation in her mother's choice of a partner. Then, Mary and I, in our enthusiasm for each other, gave too little weight to Ginger's feelings.Ever since my retirment as a medical-school professor, I have lived a great deal of the year on a sailboat - winters in the Virgin Islands, summers off the coast of Maine. Throughout my life, sailing had been a passion; once I retired, it became an essential element in my life, and it was important for Mary and me to know if she could share it. So, shortly after we met, she came to the Virgin Islands for a visit of several weeks. Later that winter she visited again. On both occasions Ginger was left with good friends in the States, but on Mary's third trip we invited Ginger to come along too, and bring a friend. Ginger was cool to me the entire time, and rude enough on one occasion to make me explode with anger.Ten months after our first meeting, Mary and I decided to get married. At the time, I lived in New York City, Mary and Ginger in California, and we would have preferred to settle in one of those places. But Ginger pleaded with us to make our home in Arkansas, where she had grown up, where she was the adored first grandchild on both sides of her family, and where her father lived. For those reasons, we agreed to build a house there; Ginger and her father agreed that she would live with him during the months of the year when Mary and I might be cruising. But a year later, when our house was finished, Ginger and her father changed their minds about living together. Once again she became our full responsibility, and we tried to make plans that would suit everyone.
Our idea was to live in Arkansas in the fall and spring, and spend summers with Ginger on the boat. In the winter she had three weeks of vacation at Christmas and two in February, when she could also join us sailing. That left two months when she needed to be in school and Mary and I wanted to be on the boat. We knew we could make alternate living arrangements for her.But Ginger was outraged. From her point of view she was being left behind a lot of the time, and as she grew older and bolder, she reproached us for making her feel unloved, neglected and abandoned. Although we may have been guilty of some ignorance and insensitivity, I don't think it was all as one-sided as Ginger's feelings told her. As I saw it, it was more often she who was unwilling to be with us. She adamantly refused to spend the summer with us in Maine, which she imagined to be a cold and unfriendly place. Another summer we yielded to her request and stayed in Arkansas for a very hot July - but we saw little of Ginger. She spent almost all her time in town instead of inviting friends to our house by the lake.It wasn't just summers that were a problem. For the first three or four years that we shared a home, it seemed to me that Ginger rarely looked at me or spoke to me. When I'd drive her to school because she'd missed the bus, I'd try to make conversation, with no response except for a muttered yes or no. Once or twice a year I'd explode. "Ginger," I remember saying one day, "in my seventy-five years, I've been acquainted with thousands of people, but not one of them has been as rude as you!" I thought I saw a faint smile of triumph.As if I didn't have enough trouble just trying to be accepted, I compounded my problem by being critical of Ginger. At the table she would pick chicken into small pieces with her hands and then let her fingers dabble in the gravy. (Mary was sure she did this to taunt me.) She refused to wear her teeth-straightening headgear despite my insistence. She kept her room in utter chaos and every morning left her washcloth in a soaking wet ball on her washstand. Over and over I would explain that it couldn't possibly dry that way and would get mildewed. If she said "Me and him were late for school," I would correct her grammar. What madness!I often wanted Mary to reprove Ginger, but although she did listen sympathetically, she naturally was reluctant to do anything to make Ginger think her mother was siding against her. Mary told friends that she felt her arms were being pulled out of their sockets by Ginger and me.There are many more problems in stepfamilies than the ones I've focused on. In some cases both husband and wife in a new marriage have brought children into the family, and the two groups of kids have to learn to get along with each other as well as with their respective stepparents. Sometimes ex-spouses continue to be full of bitterness over visitation rights and money matters. A helpful book that deals with these and other difficulties that may arise is How to Win As a Stepfamily by Emily and John Visher.In my own case, time was a most important healing factor. Three of four years of painful relations between Ginger and me were followed by four or five years of gradual improvement. And Ginger's own development also eased our problem. She was moving away from a stage of almost complete dependence on her mother to an age when she desired independence. The older she got, the less of a threat I became. In retrospect, though, we probably could have become friendlier sooner if I had had the sense and self-control to avoid criticizing her. All the experts who have written about the step-relationship agree that the stepparents should go slow in trying to become the disciplinarian. Assuming that role only makes the child say or think, "You are not my parent and I don't have to obey you!" This doesn't mean a stepparent has to accept abuse - only that he or she should wait for acceptance before trying to take over the kind of general control and guidance that are a parent's responsibility.Ginger is now 20, and she and I are good friends most of the time. As a high school senior, she helped me get invited to speak at her commencement, a gesture of acceptance that pleased me enormously. She also refers to me occasionally as her dad, and although I have no wish to displace her father, the term of affection warms my heart. |
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| Children Should Be Shielded From Choosing Parents in Custody Cases |
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| by Patricia G. Miller |
| Reprinted from the Pittsburgh Post-Gazette, Thursday, August 17, 2000 |
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| Should children get to decide or even express an opinion about which feuding parent should have custody of them after the divorce?Is doing so a reflection of the modern view that children aren't like pieces of furniture to be parceled out? Or is it, as some would argue, like letting a child decide whether to eat his carrots or go to the dentist?Assuming that the child should express an opinion about something so vital to his or her everyday life, should it be the deciding factor or one of many factors?Like many things in the law, the answers depend on several aspects of each individual case. One is the age of the child. A 6-year-old who still believes in the tooth fairy and Santa Claus is much less persuasive than the 16-year-old who weighs 180 pounds and says, "I don't care what you say. I'm not going to live with my Mom, or even visit her, because I don't like her boyfriend. Besides, I'm busy this weekend."Bet he doesn't eat his carrots if he doesn't want to, either, and no one gives him an argument. Given his age, his preference is the almost the only factor that counts.Another important aspect to be considered is the child's reasons for favoring one parent. This is where it gets more difficult for the courts. "I want to live with Dad because he lets me stay up until 2:00 am, and I don't have to eat carrots." This is a bad reason that is easily ignored.What about, "I can talk to Dad. He listens to me. Mom gets so angry if I even say I like Dad, so when I'm with her, I don't even call him." This is a reason the court will pay attention to because it strongly suggests the mom is more likely to exclude the other parent. My cat, who is very smart, but never went to law school, is likely to get this one right. Dad gets custody.Another child chooses dad because at his house she can have a dog. Again, both the cat and the court have no trouble recognizing this as a poor reason. But most cases are not quite so clear-cut.Two children, ages 9 and 7, were asked to choose between dad in Pennsylvania and mom in Maryland. They said they wanted to stay with dad because they had more friends there. That may be a good reason depending on the friends, but then they added that dad had a big yard and a pony. That is typically not a good reason because a superior economic situation is never a reason for awarding custody.In this case, for reasons that were not stated, the court decided the children's preference was not vital in deciding custody.Sometimes, the court base decisions on bad reasoning. In one case, mom abandoned the family, leaving dad to raise their daughter, which he did very well in a happy, loving environment. After three years, during which time mom made no attempt to visit her daughter, she decided she wanted custody.Not surprisingly, the child expressed a strong desire to stay with dad. For reasons that were not stated, the trial court gave custody to mom. On appeal, Superior Court found the child's reasons more persuasive and continued dad's custody.So, should children decide or express an opinion about who gets custody of them after the parents' divorce?If you are the parent, try very hard to resolve the issue without going to court, because no child should be given that much responsibility. When children are forced to choose one parent over another, they inevitably feel guilty.The grown-ups are the ones who messed up. They should shield the child and assume the responsibility themselves. |
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| The Humor in Stepfamily Living |
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| by Margorie Engel, MBA, Ph.D. |
| from The President's Message, Stepfamilies, Volume 18, Number 8 (Winter, 1999) |
| Let's face it, stepfamilies are funny.
Children are often the best sources for humor that comes by way of literal interpretations and viewing life from a surprise vantage point. One of my favorite stories is about the couple with two daughters and one son from previous marriages. Charles and Karen said, "The kids immediately began a campaign to have us get married sooner than we were planning. One night, we had a dinner of hot dogs with candlelight and music. Becca piped up, "Isn't this romantic? Just the five of us!"
Following a special weekend of sailing, my daughter, Jenny announced her engagement to one of our granddaughters by saying, "Alex asked me to marry him in the rowboat!" Instead of being excited about a family party, Bridget looked puzzled. "But Aunt Jenny, where will we all sit?"
While I'm on the topic of weddings, several years ago The New York Times wrote about a bridal party. The maid of honor was eleven, the best man, thirteen, and the usher, eight. All three were described as "model attendants at their mother's second marriage." Later that year, the children attended their father at his second marriage. "I'm getting the hang of it now," remarked the thirteen-year-old.
Emily and John Visher each had a son named David when they married forty years ago. Recently, at a family reunion, they overheard two of their grandsons taking. "My grandparents are a little crazy. They got confused and named two sons David."
Then there were the two youngsters having a conversation going to and fro on the playground swings: "My mother's maiden name? Carlson Hyphen." And the surprise request when it came time for the regular bedtime story: "Tell me again about that day you got it all together." Bill Keane, creator of The Family Circus cartoon, depicted one side of a mother-daughter chat: "Greg's mother is divorced from his real daddy, and she has step-husband now." And there was a grade-school youngster who notified his buddy: "I'm under new management...my mom married again."
Please send us your humorous family stories. The new saa web site and our redesigned newsletter provide opportunities for us to share the lighter moments of stepfamily living. Look for and enjoy the funny side of life!
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| Divorced Fathers Can Still Be Active In Their Children's Lives |
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| by Patricia G. Miller |
| reprinted from the Pittsburgh Post-Gazette, Thursday, October 26 2000 |
| There are many adults who still harbor deep anger or sadness over perceived childhood abandonment by their father when he moved out of the house at the end of the marriage.
The pain is not dulled by time.
Let's look at what happened to such children in the 1940s or even the 1960s. Because divorces were a lot harder to obtain back then, often Dad just moved out when he felt trapped in an unhappy marriage. Maybe he died 40 years later still legally married, but for all practical purposes the marriage and traditional family lifestyle had ended long before.
Back then each parent performed fairly rigid sex-based roles. Dad went to work, earned money, came home for dinner, read the paper and maybe coached Little League. He did not do laundry or change diapers. How ever much he loved his children, everyone understood that the kids were Mom's responsibility.
If, after moving out, he put forth his best effort to continue his prior role, he sent support checks and perhaps paid for piano lessons. But it wasn't enough for him or his children. They lost each other. He didn't really have very effective ways to stay involved in their daily lives.
It wasn't entirely his fault. Blame society with its rigid parental sex role stereotyping.
Now fast forward to the year 2000 and a couple I know. They had a terrible marriage doomed to failure from the beginning. His career, which required a great deal of travel, was clearly his most important priority. She was left alone all week with their three young children and this put strains on their marriage.
They also had very different ways of dealing with conflicts and problem solving. She tried to talk about what bothered her and when she got no response, she cried. His response to conflict was silence and emotional withdrawal. Her reaction, more tears. His response, more distancing.
They separated when their children were ages 4,3 and 1. These two, who could never get their marriage together, are excelling at what many consider a far more difficult talk -- post-separation parenting. They do everything to facilitate dad's weekends with the children at his new home.
Mom make sure that half of the children's favorite toys are at Dad's house. Dad makes sure that he had a highchair, crib and everything needed to make his house as child-friendly as the former family home. He buys diapers and changes them, something he didn't do before separation. Even though his work schedule probably doomed their marriage, he never lets it get it the way of his weekends with the kids.
Mom does her part by never saying anything negative to the children about their dad and by doing everything she possibly can to ensure comfortable weekends for Dad and the kids, including sharing the family dog.
So how and why are these parents, particularly Dad, able to do this, especially since he was not a particularly involved parent before the separation?
The "why" is easy. Both parents have determined that their children will never bear any emotional or financial fallout from their failed marriage. From the first moment of their separation, their top priority has been ensuring that their children don't lose a loving parent because of marital strife.
The "how" is perhaps a more important question, since that 1940s dad probably could not have pulled it off no matter how much he may have wanted to. For this the law can't take as much credit as can our now less rigidly defined marital and parental roles. Now it is okay and even common from Dad to cook, do the laundry or change a diaper. Dad may not have done these things during marriage because he didn't need to. But he does them now because he recognizes that he must if the children are to have as normal a life as possible in both houses.
And everyone wins. Dad is a big winner because he is as important -- possibly more so -- in his children's lives as before the separation. Mom hasn't really lost anything because she gets a weekend off.
Of course, the children are the biggest winners because they still have two loving, actively involved parents. If only the children of the previous 60 years could have been so blessed. If they had been, we would have fewer walking wounded, abandoned children today.
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| Teens To Stepparents: If You Want To Get Along With Us... |
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| Some advice from stepchildren |
| reprinted from Lynn Minton Reports Fresh Voices in Parade, Sunday, November 19 2000 |
| "The best thing my stepfather did was to stand back and allow me to get over the divorce. Neither my mother nor my stepfather pushed me into the relationsip. And he let me know he was there for me as a father and a friend--and that he loved me, whether I was his daughter or not. Recently, my stepfather adopted me." -Katrina McDaniel, 17, Coopersburg, PA "Stepparents must realize, in order to get along with us, that they are not our mothers or fathers. They are simply our parents' spouses. I have a stepmom, and I'm on my second stepdad. My stepdads both recognized that they weren't my father, and although they disciplined me, they were more like friends to my brothers and me. My stepmom was a different story. She and my dad were married when we were all young, so she thought she was our mother, which caused a lot of problems. But after a while, we realized that what we needed was to talk more and try to understand each other. We get along a lot better now." -Brad Venable, 21, Scottsboro, AL "Stepparents shouldn't treat you differently from their own children. The ways they exclude you might be small, but it's the small things that really hurt, because they go by unnoticed by everyone except the child. Every child needs love, especially those who live in a home without one of their parents. A stepparent is supposed to fill that space--most of it, anyway. All I wanted from my stepparents was their approval and love. I received it from one and am working on at least friendship with the other." -Nicolle Phillips, 16, Chula Vista, CA "The new parent should get to know his or her stepchildren before becoming an authority figure. Be someone they can have fun with, be themselves and laugh with. Give them some of your time, but not too much, because--no offense--we teens like our space just like you do. If your relationship starts out rough, then just take it easy and don't try too hard. It's bound to get better when the time is right." -Melissa M. Crull, 17, Tremont, IL "I wasn't comfortable with my dad dating, so his girlfriend invited me to do things with her, like go to the zoo and a farm. Now she's my stepmother, and I don't know what I'd do without her." -Jennifer Lechner, 12, Ballwin, MO "I feel the reason my stepmother and I get along so well is that she doesn't try to replace my mom. She knows that I have a mother. She is more than a friend--she is a parent figure. But she doesn't put down my mom and her decisions. And she is there for me to talk to, without the pressure I get from my mom. I love both my mom and my stepmom very much." -Pamela Schutt, 16, Ripon, CA |
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