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Johnson v. Johnson9/14/2000
not bound to maintain the spouse's dependant children, as defined in section 50-09-01, unless the child is received into the stepparent's family. If the stepparent receives them into the family, the stepparent is liable, to the extent of the stepparent's ability, to support them during the marriage and so long thereafter as they remain in the stepparent's family. Such liability may be enforced against the stepparent by any person furnishing necessaries to such children. If the children are received into the stepparent's family and supported by the stepparent, it is presumed that the stepparent does so as a parent, in which case the children are not liable to the stepparent for their support, nor the stepparent to them for their services. The legal obligation of a natural or adoptive parent to support that person's children is not affected by the liability imposed upon their stepparent by this section. N.D.C.C. § 14-09-09.
Neither parent nor stepparent is defined by our statutes. Section 14-17-01, N.D.C.C., defines the relationship of parent and child as "the legal relationship existing between a child and the child's natural or adoptive parents incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship."
[ ] Although section 14-09-09 does not apply to a step-grandparent, the statute essentially codifies the duties of a stepparent who is in loco parentis. A stepparent who is in loco parentis assumes a parental status and discharges parental duties. Fuller v. Fuller, 247 A.2d 767, 770 (D.C. Ct. App. 1968) (citation omitted). A stepparent who is in loco parentis, once divorced, no longer has a duty to support a stepchild unless the in loco parentis relationship continues. Id.
[ ] The rationale of section 14-09-09 is simple: absent adoption, stepparents are not liable to support stepchildren once the stepparent-stepchild relationship is severed. The rationale is further emphasized in Miller v. Miller, 478 A.2d 351, 358 (N.J. 1984):
A stepparent who tried to create a warm family atmosphere with his or her stepchildren would be penalized by being forced to pay support for them in the event of a divorce . At the same time, a stepparent who refused to have anything to do with his or her stepchildren beyond supporting them would be rewarded by not having to pay support in the event of divorce.
Although the terms of section 14-09-09 clearly do not apply here, the public policy of the statute and the public policy announced in Miller do apply. Once Madonna Johnson obtained temporary custody of Jessica Clayton, Antonyio Johnson could have refused to have anything to do with the child. Or, alternatively, he could have provided a warm family atmosphere by providing support and love.
[ ] It is illogical to apply the public policy of section 14-09-09 to a stepparent, but not to a step-grandparent when the step-grandparent is in loco parentis. If such discriminate application of this public policy were employed, child support could be imposed under the auspices of equitable adoption upon essentially any person other than a parent or stepparent. For example, a relative, a friend, a sibling, a babysitter, a daycare worker, a foster parent, or anyone who assumes parental authority and discharges parental duties with the intent to serve as a surrogate mother or father could, under our newfound "equitable adoption" criteria, be liable for child support.
[ ] The majority, however, concludes, at 30, that section 14-09-09 does not apply because "the circumstances in the case presently before us are not those contemplated by N.D.C.C. § 14-
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