In becoming stepfather/stepmother to your lover's child, you may wonder if you have a duty to pay for the child's living expenses where the child is still receiving maintenance from his/her biological/adoptive father and mother.
A step-parent is classified as a non-parent, which even includes, grandparents or relatives. He/she is neither a biological nor an adoptive parent. It is the process by which your relationship with the child is formed that makes you a step-parent. It is opposed to, for example, the adoption process, or blood relations. As such, this relationship between you and the child is not a formal legal relationship.
As it is a not-formal legal relationship, the finding of a relationship of parent-child will be premised on the facts showing that you have accepted the child as your own, making you duty bound to the child.
It is the court's present position that upon marrying the child's parent, and in accepting the child as you own, you are effectively entering into an equal cooperative partnership of efforts. Such efforts will include both you and your spouse in providing for the child's best interests and welfare.
Therefore, you would have a legal duty to maintain the child, and may be ordered by the courts to do so, for as long as the child remains a child, but only where all of the following are present:
There must be a “family” to which you can accept the child into.
Family comes in all shapes and size, but generally, a “family” is formed when you and the child's parent are married. However, it can be argued that a “family” exists where there is a minimum of 2 persons who are in a relationship that can be determined by the courts that they are, in fact, a “family”.
You must have voluntarily accepted the child as a member of your family. To accept a child as a member of your family means that you do, to the ordinary sensible citizen, treat the child as your own.
In determining the quality of the relationship between you and the child, the court will examine all relevant facts and circumstances available. Such fact examples include:
- your marriage to the child's biological/adoptive parent,
- any expressed declarations of parenthood you may had made, and
- the conduct between you and the child, e.g., you are addressed as “Dad” or “Mom”.
If such facts and circumstances does appear to the ordinary sensible citizen that you have accepted the child into your family, then the court would be inclined to agree with the ordinary sensible citizen.
Conversely, if, for instance, should your spouse refuse you any meaningful interactions with the child, this would suggest, but not determine, that you did not or could not accept the child as your own.
Being that this issue is highly fact sensitive, to effectively argue the facts consistent with established legal principles, there is confidence to be found in the advice and expertise of our divorce lawyers.
Even where your acceptance of the child is premised on fraudulent or non-disclosed information, the court will likely, regardless, uphold your acceptance of the child as it would be in the child's best interest for you to remain duty bound. For example, you had accepted the child based on your spouse's misinformation that the child is healthy, but as it turns out, the child is not healthy. That said, the courts may be willing to find that there has been no acceptance in the first place, though this willingness is limited only to egregious situations.
You have the legal duty to maintain the child you have accepted into your family, but only in circumstances where the other biological parent has failed to maintain the child adequately.
The role of the step-parent is to only serve as a stop gap so as to prevent any decline in the child's welfare, therefore, there is only a duty to maintain the child where the child's biological parents have not adequately maintained the child.
The failure to maintain can either be a complete refusal to maintain, or, though maintenance is forthcoming, the amount is too little which will be regarded as inadequately maintaining for the child's well being.
Where the biological parents of the child, in fact, have the financial means to maintain the child adequately but refuse to, the step-parent can recover such amounts as a debt against the parents of the child. However, you cannot recover this debt from your spouse, where your spouse has not been adequately maintaining the child, because it is an equal cooperative partnership of efforts. Such matters concerning debt recovery are heard in the Family Court or High Court.
Does the duty ever end?
This duty can be terminated under exceptional circumstances.
The law will only permit the cessation of your duty, in cases, including, where the child has been removed by the other biological parent from your family, or upon a grant of an interim judgment of divorce dissolving the marriage between you and your spouse.
The law does not provide for your own abandonment of the duty to maintain the child as long as he/she remains a child. For example, even if you move out of the house, you are still liable to maintain the child.