In Loco Parentis

In loco parentis is Latin for “in place of a parent.” A foster parent, a county custodial agency or a boarding school which is assuming the parental obligations for the minor, including protecting his/her rights, may be referred to as being in loco parentis. In loco parentis infers that the person or entity is standing in the role of the parent of a minor, without having gone through the formal adoption process. At one time, colleges and universities acted in loco parentis for their students, but this is no longer true. For example, a person standing in loco parentis for a minor may be authorized to consent to medical treatment if the minor is injured.

Assignment of Rights, Duties, and Responsibilities of a Parent to Another

The term is typically used in situations where another individual or agency is acting in place of a parent on behalf of a minor. The term is used in legal settings to assign the rights, duties, and responsibilities of a parent to another person or agency, which include day-to-day responsibilities to care for and financially support a child or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary. When an agency assumes control of a child, either through voluntary or involuntary termination of parental rights, the agency stands in loco parentis. The adoption agency is not afforded all the same constitutional protections as a birth parent.

Stepparents In Loco Parentis

At common law, the relationship of stepparent and stepchild did not, of itself, confer any rights or impose any duties. However, a stepparent may be liable for the support of a stepchild if the stepparent stands in loco parentis to the child. The status of in loco parentis may be created statutorily or when a stepparent assumes the obligations incidental to a parental relationship. Factors which are considered include the age of the child, his or her dependence on the stepparent, and whether the stepparent in fact supports the child and performs the duties of a natural parent. The sole fact that the child’s custodial natural parent has remarried does not of itself establish any rights or responsibilities for the stepparent; the stepparent must intend to treat the stepchild as his or her natural child. The in loco parentis relationship is terminable at any time by either the stepparent or stepchild.

Same-Sex Partners In Loco Parentis

Same-sex partners have attempted to use the in loco parentis doctrine in order to establish custody and visitation rights once the partner relationship has ended. While courts have looked at other doctrines to establish custody, visitation, and support rights, the courts have thus far declined to apply the in loco parentis doctrine.

Tort Immunity Not Necessarily Extended to Persons Who Stand In Loco Parentis

States that retain some form of parental tort immunity do not necessarily extend that immunity to other persons who stand in loco parentis to a child, such as grandparents, stepparents, and foster parents. An Arizona court has held that parental immunity did not apply to foster parents because they differ from parents and other relatives in that, among other things, they can terminate the foster parent-child relationship when they choose to do so and they are regulated by the state. However, a Wisconsin court considered foster parents to have the same duties as other parents, and abrogated parental immunity as to foster parents and natural parents.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.