The New Illegitimacy: Children of Cohabiting Couples and Stepchildren

INTRODUCTIONHistorically, illegitimate children were punished because their parents were unmarried. The children of opposite-sex cohabiting couples are disadvantaged in similar ways today,1 and, to a lesser extent, so are stepchildren. In another article, I have discussed the impact that the current state of family law, with respect to custody, visitation, and child support, has on impact upon these children.2 Significant problems with respect to each of these issues afflict stepchildren and children who live with a cohabiting couple, especially those who are the biological children of only one partner. In this Article, I direct my attention to the effect upon these children of current American law regarding inheritance, government benefits, and standing to bring a number of tort claims.As of the 2010 census, about 4,560,000 children lived in households headed by opposite-sex cohabiting couples, almost six percent of all children in the United States.3 About fifty-five percent of these children are the biological offspring of both cohabitants, and about forty-five percent are children of only one of the cohabitants-typically seventy-eight percent of the woman.4 The overall statistics differ dramatically by race and ethnic group.5 These families are also disproportionately found among lower-income households.6 Tellingly, many of the cases challenging laws classifying children on the basis of illegitimacy, including both Levy v. Louisiana7 and Labine v. Vincent,8 were brought by African American plaintiffs.9The situation of biological children of only one of two cohabitants is functionally identical to that of stepchildren, except that the unmarried stepparent is not legally obligated to support the child's parent. Many scholars believe that the distinction between stepchildren whose parents are married and those whose parents are unmarried makes little real difference and should be disregarded.10 Social scientific studies of stepchildren and cohabitants' children support this conclusion. Married or unmarried, stepparents are a varied group-male and female, having their own children from previous unions or not, more and less close to their stepchildren.11 The quality of a stepparent-stepchild relationship varies with the age of the child at the time of the remarriage or beginning of cohabitation and the length of time the two have lived together.12 Some stepparents become very involved in the lives of their stepchildren, virtually replacing the noncustodial biological parent,13 while others remain distanced from their partner's child; the second scenario is especially common if the child was an adolescent when the stepparent moved in.14 The relationships between children and stepparents differ in a variety of ways from the relationships children have with biological parents with whom they have lived since birth, but studies have shown that stepchildren share these differences with children of cohabitants.15In my previous article, I focused on potential and probable harms experienced by some of these children if their biological parent dies or separates from the other cohabitant or stepparent. If the biological parent dies, current law would typically remove their partner's children from the household in which they have been living, and place them in the custody of their noncustodial parent or other relatives. This potentially separates the children from their primary caretaker, from the home and neighborhood with which they are familiar, and from step- or half-siblings they have regarded as family, 16 with no presumptive right to visitation. A similar result is likely to occur if the adults separate, with particularly harmful consequences if the non-biological parent has been the child's primary caretaker.17 Moreover, if the child's parent and his or her married or cohabiting stepparent separate, sudden economic disaster may befall the child, who has no right to child support from the ex-cohabitant, even if both child and parent have depended upon the cohabitant's income. …