How should the family court handle misbehaving stepparents in custody litigation?

I have a fundamental jurisprudential difference with most of my family law colleagues and many of the state family court judges regarding how one should deal with misbehaving stepparents in custody litigation.[1] Their typical response is to join them as parties and subject them to restraining orders. My preferred response is to make parents strictly liable for their spouse’s misbehavior. If the goals are to stop the misbehavior and protect the children I remain unconvinced that the conventional approach is better.

If the stepparent is truly abusing the children, the family court can–and should–bring child protective services proceedings pursuant to the authority of S.C Code § 63-7-20 (4)(f). However, typically, stepparents are joined as parties to restrain them from behaviors that don’t rise to the level of child abuse but are causing the children distress. Once these stepparents are joined as parties, and restraints put in place, these stepparents can be held in contempt for violations of the restraining orders. The court attempts to control the problematic behavior through the threat of contempt sanctions.

There’s numerous reasons to discourage this approach. Adding more parties to the case geometrically increases the complexity of the basic litigation because more parties and more attorneys need to be accommodated. Also it is difficult to document the type of behaviors that these restraining orders are intended to prevent, as they typically take place within the spouse’s home. As these stepparent problems arise because a parent is more loyal to the spouse than to the children, or aligns with the stepparent against the children, documenting this contempt is even harder. Further, the heightened burden of proof for contempt–clear and convincing evidence– makes it less likely that the misbehavior will be proven than when it only needs to be proven by a preponderance of the evidence as part of custody determinations.

Additionally, contempt sanctions are imperfect tools for correcting stepparent misbehavior. The family court is justifiably reluctant to impose criminal contempt sanctions on non-parents for violations of restraining orders. Civil contempt findings against stepparents generally result in an admonishment not to do the offending behavior again and a requirement of paying the other side’s attorney’s fees. Meanwhile, the spouse of the stepparent is able to sidestep responsibility for behavior that he or she ought to be required to control.

I believe it is better jurisprudence to simply make a parent strictly liable for any of his or her spouse’s misbehavior towards the children. That parent chose to make the stepparent part of the children’s household. If this choice was, or becomes, an example of poor judgment, it ought to result in that parent having less or no time with the children–rather than trying to punish the stepparent while allowing the parent to evade responsibility. If the court refrained from joining stepparents as third-parties to custody litigation, and simply informed parents that they would be held responsible for any of their spouse’s misbehavior, parents would be forced to control stepparent behavior toward their children rather than abdicating that responsibility to the stepparent or the court. Failure to exercise this responsibility would, and should, result in a loss of custody (for custodial parents) or visitation time (for non-custodial parents).

Early in my career I brought contempt proceedings against a father who was allowing his new wife to exercise corporal punishment on the children in violation of the court order. That father defended the rule to show cause by claiming he did not approve of his wife’s behavior. The court didn’t care: it simply wanted to know if he was aware of it. Since he was aware of it the court held him responsible for it. When he asked the judge what he should do if his wife continued to spank the children, the judge told him he should separate from her. The corporal punishment problem stopped immediately thereafter. So long as this father could elude responsibility for his wife’s behavior he was happy to do so and allow his wife to act as she wished. However once the court made him responsible, the offending behavior stopped.

I believe family law attorneys and family court judges are mistaken in joining stepparents as parties for custody litigation. There is greater ability to make such behavior stop when parents risk losing time with their children due to their spouse’s misdeeds.
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[1]While this blog specifically discusses stepparents, the suggestion applies whenever there are other adults living within a parent’s household. Stepparents are simply the most common example of such adult household members.

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