It's a common belief that only biological parents are required to pay child support after a divorce. However, there are certain circumstances where a step-parent does have an obligation to pay support. This issue may become increasingly important as time goes on due to the number of gay and lesbian couples who have children to which only one parent is biologically related. This is what you should consider.
When can a court order a step-parent to pay support?
Depending on the jurisdiction in which you live, there's a possibility that something known as "equitable estoppel" will require your ex-spouse to pay child support even if he or she isn't the biological parent of your child. Equitable estoppel prevents someone from asserting a legal claim if that claim would be inconsistent with his or her prior claims and conduct. What this essentially means is that the court can look at your ex-spouse's words and behavior and determine that he or she, at least at one time, fully intended to act like a parent to your child. If that's true, he or she may be barred from now claiming a lack of personal or financial responsibility for the child now.
What sort of things will the court consider?
To get the determination that equitable estoppel should apply, you would first need to put the issue before the court by asking for support. If your ex-spouse claims that he or she shouldn't have to pay support because he or she isn't biologically related to your child, the court can then examine a number of issues to make a determination:
- Did your ex-spouse assume the role of a parent to your child? Did your child call her "Mom" or him "Dad," or did your child use your ex-spouse's name?
- Did your ex-spouse introduce the child as his or her own?
- Did your ex-spouse contribute toward the child's financial well-being during the marriage?
- Has the child relied on that support for food, shelter, clothing or other needs?
- Would the child be harmed if the step-parent is allowed to sever the parent-child relationship?
No one answer is conclusive, and the ultimate decision of whether or not equitable estoppel applies is up to the court.
Are there any other things you should consider?
Keep in mind that there is a potential drawback if you decide to pursue this route. If your relationship with your ex-spouse is acrimonious, and you are forcing him or her into maintaining an unwilling relationship with your child, he or she could retaliate by capitalizing on his or her parental status. If the court determines that a parental relationship exists and stops him or her from terminating it with your divorce, he or she will have the right to seek visitation and custody as well. That's an important consideration that you have to consider before deciding to raise the issue.
For more information, contact Leonard & Kershaw or a similar firm.