A Latin phrase that translates directly to "in place of parents," in loco parentis refers to an adult other than a child's legal parent acting in place of a parent. When an adult assumes parental responsibilities, they're legally able and responsible for behaving as a substitute for a child's parents. In New Jersey, this doctrine is often applied in custody and support cases.
The Lento Law Firm Family Law Team assists parents, guardians, and families throughout New Jersey with custody issues. We help our clients understand their options, compile evidence, and reach a resolution that protects a child's best interests. Call us at 888-535-3686 or contact us online.
What Does Acting In Loco Parentis Mean?
In loco parentis comes into play when a parent is unable to care for a child and another adult takes on those responsibilities. It can also occur when an adult assumes a parental role in a child's life, such as a step-parent. In loco parentis may cover a child's physical care or financial support.
Even if an adult doesn't have any legal or biological ties to a child, they may still be responsible for child support. This determination depends on the specific circumstances of the adult's relationship to a child.
Lawyers and judges may use terms other than in loco parentis when discussing non-parental care for a child. Examples of these other terms include:
- Legal guardian
- Custodial or parental responsibility
- De facto or surrogate parent
- Parental responsibility
While these terms may have differences, they all focus on the same central theme. Namely, whether an adult has the ability to take on caring for a child and protecting a child's health and safety.
In Loco Parentis versus Traditional Child Custody
In loco parentis differs from traditional child custody because it only indirectly involves a child's legal parents. In loco parentis is less likely to apply in divorces that involve a child's legal parents.
In child custody cases involving a child's legal parents, in loco parentis is only likely to apply in cases when both parents are unfit to care for a child or if a grandparent or sibling wants visitation. Absent evidence that both parents are unfit to care for a child, courts will give custody to a child's legal parents.
Even when one parent is unfit, courts are unlikely to give a relative or other adult custody. For example, a husband and wife are divorcing. A court finds the wife is unfit to have custody, granting sole physical and legal custody to the husband. The wife will have supervised visitation with the child.
The wife's parents want to petition for joint custody, with the child spending part of their time with their grandparents. Courts are unlike to grant this because the husband is able to care for the child. At best, the grandparents may be able to petition for visitation.
If, however, a court finds both parents are unfit to assume custody of the child, the grandparents may be granted custody under the in loco parentis doctrine. This doesn't end the parents' rights, and the parents may be required to provide financially for the child, but the grandparents will be responsible for the care of the child until at least one parent is able to regain custody.
Even in this situation, the grandparents will have to show an established relationship with the child. The determining factor will be what custody decision is in a child's best interests.
A Child's Best Interests
During a divorce that involves children, one of the primary considerations is what's in a child's best interests. This means that any decision should consider a child's emotional, physical, and developmental needs.
Courts will use a variety of factors when determining what's in a child's best interests. Most importantly, a child should be in a stable and safe home. For example, while courts encourage stability and consistency when making custody decisions, those decisions are usually secondary to a child being in a nurturing environment, even if that means upsetting their daily routine.
While New Jersey has a list of factors, judges don't have to consider every recommended factor and may consider additional facts and information. Each case should be based on its specific circumstances.
Some relevant factors:
- How old is the child?
- The older the child, the more likely courts are to consider their opinions on custody and other matters
- What is the child's current routine?
- How much time has a child spent with the adult petitioning for custody?
- What does the child need?
- Is the child safe from abuse?
- Does either parent have a history of domestic violence?
- A parent having a history of domestic violence doesn't automatically bar them from custody
- Does the child attend school?
These are just a few factors. Where they may differ from a traditional custody determination is that a non-parent adult will need to do more to show the current relationship between them and the child.
Child Support and In Loco Parentis: 'Representation of Support'
Even if a step-parent doesn't legally adopt a new spouse's children, they may still be required to pay child support in the case of a divorce. If a step-parent has made a "representation of support," they may be required to continue that support on the basis of in loco parentis. Essentially, a step-parent assumed a parental role by financially supporting a child.
This topic was answered in a divorce case when a stepfather had supported his wife's children for seven years. While the children's father was alive, they had used their stepfather's name in school and loved him.
The stepfather had held himself as the children's father. He hadn't adopted them, as their biological father refused to sign away his parental rights, but the stepfather had acted in loco parentis.
In this case, the stepfather had attempted to block the children's biological father from having a relationship with them. The court suggested that a step-parent may only be required to provide financial support if they've actively worked to interfere with a child's relationship with their legal parent.
If a parent isn't receiving child support either at the start of or during a marriage, that doesn't automatically mean the step-parent is required to pay child support. Likewise, a parent not pursuing the child's other legal parent of child support during a marriage doesn't force a step-parent to pay child support.
When determining if a step-parent should be obligated to continue support, a New Jersey court found that there should be evidence of:
- Representation of support
- Reliance on that support
- Detriment, which means children will suffer future financial
- This last point is especially relevant if there's evidence that a step-parent interfered with or prevented a child's relationship with their legal parent
These determinations should depend on the facts of the case.
Biological and legal parents should be the primary source of child support. A step-parent doesn't avoid responsibility for continuing child support simply because there wasn't a legal adoption.
As in any child support case, relevant evidence and facts should be considered to understand the specifics of the case. The Lento Law Firm Family Law Team can help people understand their potential obligations regarding child support.
Step-parents and In Loco Parentis Custody
Step-parents don't generally have a right to visitation or custody after a divorce. Unless their former spouse is willing to allow a continued relationship, step-parents have few legal avenues for maintaining a relationship with a child.
One exception to this rule is if both legal parents are unable to care for a child. In these situations, a step-parent will need to show that their relationship with a child is similar to a traditional parent-child relationship.
Step-parents can establish an in loco parentis relationship by showing:
- Day-to-Day Involvement
- How is a step-parent involved in a child's daily life?
- Examples include involvement with morning routines, school pickups, activities, assisting with homework, bedtime rituals, and other consistent activities
- Financial and Emotional Support
- Has a step-parent provided financial support, such as paying for school or activities?
- What is the emotional bond between the step-parent and child?
- Length and Stability of the Relationship
- Has the step-parent been a stable, long-term adult in a child's life?
- Has the stepparent-child relationship been established over time?
- Has the step-parent been a consistent and reliable presence in the child's life?
- Documentation and Witness Testimonies
- Can other adults, such as teachers, friends, and family testify to the step-parent's hands-on role in the child's life?
- What documents indicate a step-parent's role in a child's life?
The primary question in determining a step-parent's assumption of care for a child: Is this in the child's best interests? If a step-parent can show that they have positively affected a child's life and provided emotional stability and a safe environment, a court is more likely to support a step-parent taking on a child's care.
Again, it's important to keep in mind courts are unlikely to rule for step-parents if a child's parents are alive and capable of caring for their child. If you're a step-parent who wants to know your options, contact the Lento Law Firm Family Law Team.
Visitation
During a divorce, a child's relationship with other family members may be affected. In some cases, certain relatives may want to petition the court for visitation in order to maintain their relationship with the child.
New Jersey allows only grandparents and siblings to petition for visitation. Even if an aunt, uncle, or other relative has a close relationship with a child, they will not be able to petition for visitation.
Visitation is different from in loco parentis. A child's parents are still in the picture, or another adult has custody. It's also different because step-parents or other relatives cannot petition for visitation.
A grandparent or sibling will generally not petition for visitation unless they're being prevented from having a relationship with a child. For example, if one parent has full legal custody, they may prevent the child from maintaining a relationship with the other parent's parents.
New Jersey allows individuals to petition for visitation when:
- They are a sibling or grandparent
- They currently reside in New Jersey
- They can produce evidence that visitation is in a child's best interests
If you're a grandparent or sibling who is being prevented from seeing a child because of a divorce, contact the Lento Law Firm Family Law Team.
Providing Stability for Children
Divorce can be stressful for everyone involved. Even in amicable divorces, ending a marriage often means drastic changes to everyone's daily lives.
Changes to their home environment can be especially stressful for children. It may affect their sense of stability in the world, and it may mean they see less of adults who have provided daily care and support.
The in loco parentis doctrine may also come into play. Step-parents may be required to pay child support. In some cases, step-parents may petition for custody if a child's legal parents are unable to care for them. Grandparents or siblings may petition for visitation rights if a parent is preventing them from seeing a child.
In any matter related to children and divorce, the primary question is what's in a child's best interests. Enabling a child to maintain a relationship with both of their legal parents is important, but so is ensuring a child has financial support and connections to other family members.
For some step-parents, being forced to pay child support puts an undue burden on them. They shouldn't be forced to provide for a child because they did something nice.
If you're a step-parent or other relative, a divorce may mean a change in your relationship with a child. In some cases, it may mean an adult other than legal parents provides child support or care.
The Lento Law Firm Family Law Team assists families throughout New Jersey with family law matters. We help parents, guardians, relatives, and families. In matters related to children, we focus on protecting children's best interests. Call us at 888-535-3686 or contact us online.
