Step-Parent as Fiduciary

Authors

Ruth Zafran, Harry Radzyner Law School

First Page

1183

Abstract

Does a step-parent have any obligations toward the non-resident legal parent of the child? To date, the law has been silent on this point, and the scholarship has paid little, if any, attention to it. This Article argues that the conceptual framework of fiduciary enables us to recognize, both conceptually and legally, the relationship between the step-parent and the non-resident legal parent (who, generally speaking, spends less time with the child on a day-to-day basis). The aim of this fiduciary duty is to protect the more vulnerable party (in this specific context, the non-resident legal parent) from the more powerful one (the step-parent) and to safeguard important social and familial interests, including cooperation between family members and mutual respect between them. Up until now, efforts have been made to give proper acknowledgment to the standing of the emotional and meaningful relations forged between children and their step-parents, but almost no attention has been given to the relations between the step-parent and the non-resident legal parent. This Article joins a strand of scholarship that brings fiduciary to the field of family law, adding, for the first time, a new dimension by dealing with the special relationship between the step-parent and the non-resident legal parent.

In Part I of the Article, I present the relationship between the step-parent and the non-resident legal parent, reveal the lack of its consistent regulation, and analyze the difficulties caused by this lacuna by highlighting the shortcomings of potential approaches currently found in case law. In Part II, I lay out the conceptual infrastructure that I am proposing as a fit-for-purpose response to the complexities of this relationship. I broadly explain the notion of fiduciary in private law and consider the role it has, or may have, in the family context, especially vis-à-vis the step-parent–non-resident parent relationship. In Part III, I present two case studies and discuss them in the context of the conceptual infrastructure offered by fiduciary law. Part IV demonstrates the application of the conceptual infrastructure offered by fiduciary law and provides the preliminary doctrinal output of my proposed framework.

Recommended Citation

Ruth Zafran, Step-Parent as Fiduciary, 25 Lewis & Clark L. Rev. 1183 (2022).
Available at: https://lawcommons.lclark.edu/lclr/vol25/iss4/6