Private Law Theory

ABSTRACT
Does a step-parent have any obligations toward the legal parent of the child? To date, the law has been silent on this point. This article is the first to argue that step-parents do have obligations toward the non-resident legal parent, and that these obligations originate from the step-parent’s role as fiduciary. More specifically, this article joins a strand of scholarship that brings fiduciary to the field of family law, adding a new dimension by dealing with the special relationship between the step-parent—primarily the one who resides with the child – and the legal parent – primarily the parent that does not reside with the child, or who spends less time with the child on a day-to-day basis. This relationship has thus far been neglected by the literature, notwithstanding its growing ubiquity.

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 the 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.

Zafran, Ruth, Step-Parent as Fiduciary (February 28, 2022), Lewis & Clark Law Review, volume 25, no 4, 2022.