Is a Step Parent Liable for Child Support in Pennsylvania?
Full Question:
Answer:
Step-parents in Pennsylvania are not liable for child support following the dissolution of a marriage, even where a step-parent assumes in loco parentis status. However, support of children from a previous marriage may be considered in awarding spousal support. See Drawbaugh v. Drawbaugh, 436 Pa. Super. 57, 647 A.2d 240 (1994).
DRAWBAUGH v. DRAWBAUGH, 436 Pa. Super. 57 (1994)
647 A.2d 240
Margaret E. DRAWBAUGH, Appellee, v. Leon R. DRAWBAUGH, Appellant.
Superior Court of Pennsylvania.
Argued May 11, 1994.
Filed: September 2, 1994.
Appeal from the Court of Common Pleas of York County, Civil
Division, No. 1041-SA of 1993, Brillhart, J.
Richard H. Mylin, III, York, for appellant.
Claudia DeArment, York, for appellee.
Before WIEAND, SAYLOR and CERCONE, JJ.
Page 58
SAYLOR, Judge:
This is an appeal from the trial court's order of November
16, 1993, directing Appellant, Leon R. Drawbaugh, to pay child
support for his stepchildren, Joshua and Lynne Moore.
Leon Drawbaugh (Stepfather) and Margaret E. Drawbaugh
(Mother) began residing together in 1982, and were married on
December 6, 1986. Mother has two children from a previous
marriage, Joshua Moore, born December 16, 1980, and Lynne
Moore, born January 21, 1982. Stepfather is the only father
that the two children have known since 1983. Joshua has not
seen his natural father since he was eight months old, and
Lynne has apparently never seen her natural father. While the
parties were married, Stepfather and Mother pooled their
resources to provide food, clothing, shelter, and medical care
for the children. Stepfather was also involved in the rearing
of the children who referred to him as "dad."
Mother has attempted to obtain support from the natural
father, but her efforts at locating him and pursuing support
have been unsuccessful. Adams County has continued to maintain
an arrearage claim against the natural father for a number of
years, but according to Mother, a charging order has not been
in existence for some time. Stepfather encouraged Mother to
pursue the child support action against the natural father and
accompanied Mother to the domestic relations office in an
effort to get the support order enforced. Although the
diligence with which Mother pursued this support claim
apparently diminished over time, Stepfather never told Mother
to abandon efforts to enforce the support order against the
natural father.
Mother filed for a divorce in November 1992 and moved out of
the house with her two children in December 1992. Stepfather
claims that Mother voluntarily departed from the marital
residence, and that he was unaware of any conduct on his part
which justified her withdrawal from the residence. The trial
court agreed and denied Mother's claim for spousal support.
Stepfather filed a petition for minimal visitation with the
two children on May 3, 1993, since Mother stopped any and all
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contact between Stepfather and the children claiming that
Stepfather had no legal rights to visitation. After the trial
court entered an order granting Stepfather visitation with the
children, Mother filed a claim for child support against
Stepfather. On November 16, 1993, the trial court held a
hearing after which it concluded that Stepfather had assumed
the status of in loco parentis in regard to the two children
and was thus responsible for their support. Accordingly, the
court entered an order directing Stepfather to pay child
support for Joshua and Lynne Moore at the rate of $89.00 per
week plus $5.00 per week on account of arrears. It is from this
determination that Stepfather appeals.
Our standard of review in considering a trial court's
decision in a child support action is clear:
A child support order will not be disturbed unless
the trial court committed an abuse of discretion. An
abuse of discretion is more than an error of
judgment. It must be a misapplication of the law or
an unreasonable exercise of judgment.
DeNomme v. DeNomme, 375 Pa. Super. 212, 218, 544 A.2d 63, 66
(1988), citing Scheidemantle v. Senka, 371 Pa. Super. 500,
538 A.2d 552 (1988).
Stepfather presents but one issue on appeal: Whether a
stepfather has a legal obligation to support stepchildren even
though the natural father's rights have not been terminated by
the court and the stepfather has never encouraged the natural
mother not to collect child support from the natural father or
prevented her from doing so.
We must therefore examine the circumstances, if any, under
which a stepfather may be held liable to support the children
of his wife's prior marriage. We begin with the general rule
that a stepparent has no legal obligation to support his or her
stepchild. DeNomme v. DeNomme, 375 Pa. Super. 212, 544 A.2d 63
(1988); Klein v. Sarubin, 324 Pa. Super. 363, 471 A.2d 881
(1984); Commonwealth ex. rel. Hagerty v. Eyster, 286 Pa. Super. 562,
429 A.2d 665 (1981). However, it is Appellee's theory,
with which the trial court
Page 60
agreed, that Stepfather stands in loco parentis to wife's
children and, as a consequence, has a duty to support them.
It is true that a stepfather who lives with his wife and her
natural children may assume the relationship of in loco
parentis. Spells v. Spells, 250 Pa. Super. 168, 378 A.2d 879
(1977). Such status "embodies two ideas: first, the assumption
of parental status, and second, the discharge of parental
duties" and the "[e]xistence of such a relationship is largely
dependent upon the intention of the person assuming the
parental status." Klein v. Sarubin, 324 Pa.Super. at 367-368,
471 A.2d at 883. Whether or not such status exists is a
"question of fact to be determined by an evaluation of all of
the circumstances, rather than a matter of strict legal
definition." D'Auria v. Liposky, 197 Pa. Super. 271, 279,
177 A.2d 133, 136 (1962).
In Klein v. Sarubin, 324 Pa. Super. 363, 471 A.2d 881 (1984),
the Superior Court held that the trial court did not error in
refusing to allow the natural father to fully develop his
theory in a support proceeding that a second husband has
assumed the status of in loco parentis and was thus obligated
to support his stepchildren. The court did state that "in
particular instances, a support obligation has been imposed as
a consequence [of assuming in loco parentis status]," and cited
Commonwealth ex. rel. Bulson v. Bulson, 278 Pa. Super. 6,
419 A.2d 1327 (1980) and Commonwealth v. Cameron, 197 Pa. Super. 403,
179 A.2d 270 (1962) for this proposition. Klein v.
Sarubin, 324 Pa.Super. at 368, 471 A.2d at 883. Bulson,
however, was a spousal support case and not a child support
case; although there is dicta in Bulson to support wife's
position, Bulson held only that it was not an abuse of
discretion for the trial court, in calculating a spousal
support award against husband, to take into account the cost to
the wife of supporting her child from a prior marriage since
husband knew when he married her that she had this
responsibility. And in Cameron, the stepfather had joined with
the mother in executing a written release in favor of the
natural father releasing him from all liability for child
support and contractually undertaking to support the child of
the wife's former
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marriage. See, also, Roberts v. Furst, 385 Pa. Super. 530,
561 A.2d 802 (1989) (a written agreement between mother, her second
husband, and the natural father to release the natural father
from his child support obligation was enforceable).
In Commonwealth ex. rel. McNutt v. McNutt, 344 Pa. Super. 321,
496 A.2d 816 (1985), appellant was ordered to pay support for
the natural daughter of his former wife. At the time of the
parties' marriage, the child was two months old and the
whereabouts of the natural father were unknown. The appellant
never adopted his wife's daughter. During their marriage, the
parties had a child of their own and after their divorce, the
appellant continued to visit with both children. The trial
court found that the appellant had acted in loco parentis
toward his former stepdaughter and was therefore liable for her
support. In reversing the support order, the Superior Court
held as follows:
The trial court found that the Appellant acted in
loco parentis both before and after the dissolution
of the marriage and this is a finding of fact we will
not disturb. We do not agree however that the
Appellant's past and continued love and devotion to
his former stepchild carry with it the duty to
financially support [the stepchild]. This would be
carrying the common law concept of in loco parentis
further than we are willing to go. There is authority
in other jurisdictions for the proposition that a
stepparent who stands in loco parentis may be held
liable for the support of a child during the
marriage. (citations omitted). However, this
obligation does not survive the dissolution of the
marriage of the child's natural parent and
stepparent. The general rule is that no legal duty
rests upon the stepparent to support after the
termination of the marriage. (citations omitted).
If we were to hold that a stepparent acting in loco
parentis would be held liable for support even after
the dissolution of the marriage then all persons who
gratuitously assume parental duties for a time could
be held legally responsible for a child's support. . . .
These acts of generosity should not be
discouraged by creating a law which
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would require anyone who begins such a relationship
to continue financial support until the child is
eighteen years old. (emphasis added)
. . . . .
. . . [w]e cannot extend the law so far as to hold a
former stepparent financially responsible for a child
whom he loves and cares for but has not adopted.
Finally, in DeNomme v. DeNomme, 375 Pa. Super. 212,
544 A.2d 63 (1988), the Superior Court reiterated the general rule that
a stepparent has no legal obligation to support stepchildren.
It noted that an exception has been found where the stepparent
assumes in loco parentis status, citing Spells v. Spells,
250 Pa. Super. 168, 378 A.2d 879 (1977). Spells, however, did not
involve child support and held only that a stepfather, found to
be in loco parentis with his stepchildren, should be permitted
to visit with his stepchildren after the stepfather and the
childrens' mother had separated. The Court in DeNomme also
noted that the New Jersey Supreme Court has created an
equitable estoppel exception to this general rule where the
stepparent's actions have caused the spouse to abandon her
support claim against the natural parent, resulting in such
claim being barred by law, Miller v. Miller, 97 N.J. 154,
478 A.2d 351 (1984), but found no estoppel established on the
record.[fn1] In any event, our Supreme Court has not adopted this
equitable estoppel exception as the law in this Commonwealth.
Thus it appears that no appellate case in Pennsylvania has
imposed a duty of support on a stepparent, even one who
Page 63
stands in loco parentis to his stepchildren, following the
dissolution of the parties' marriage, absent a written
agreement to assume such obligation. Instantly, although the
parties' divorce was not final at the time the trial court
entered the support order, Wife had filed for a divorce, left
the marital home, and was living with her boyfriend; the
marriage was therefore for all intents and purposes over.
Here, as in McNutt, Stepfather should not be penalized for
having provided both financial and emotional support to his
stepchildren for the past ten years. Although Stepfather sought
visitation rights, to which he is entitled on this record,
Spells v. Spells, supra., and clearly loves and cares about his
stepchildren, it was an abuse of discretion to hold him legally
responsible for their support.
Accordingly, the order of the trial court directing
Stepfather to pay support for his two stepchildren is reversed.
[fn1] In its Rule 1925 statement, the trial court stated that
"[t]he Plaintiff has, in recent years, abandoned efforts to
pursue the natural father based upon her reliance upon the
Defendant assuming an increasing role in the support and
discharge of parental duties and responsibilities towards her
children." However, Wife was at all times free to pursue a
support action against the natural father, and the eventual
unavailability of the natural father was not due in any way to
the actions of Stepfather. In fact, the trial court found that
the Stepfather "has apparently encouraged [Wife] at times to
pursue the child support action against the natural father and
taken her to the domestic relations office for that purpose,
however, without any success." (Trial Court Opinion of
11/16/93, p. 4).