Parents aren't always able to care for their children. In these situations, other adults can step in to care for a child.
In loco parentis is a Latin phrase that translates directly to "in place of parents." This legal doctrine recognizes that when a person acts in loco parentis, 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 isn't a separate category of child custody or support. Instead, it's a doctrine that comes into play when a child's parents are unable to care for them or when an adult has assumed a parental role in a child's life. For custody, under in loco parentis, an adult other than a child's parents becomes a child's guardian.
In loco parentis covers not just a child's physical care but may also cover financial care. A person who isn't a child's legal or biological parent may still be responsible for child support or custody if the court demands it.
Courts or judges may use other terms that have the same or similar meaning as in loco parentis for custody cases. These include:
- Legal guardian
- Custodial or parental responsibility
- De facto or surrogate parent
- Parental responsibility
All of these terms boil down to the same question: Does this adult have the ability that's needed to assume responsibility for the care of a child and protect a child's health and safety?
Previous Actions Can Determine Current Support
In some cases, an adult may be obligated to provide child support even if they aren't a child's biological or legal parent. This often arises in divorce cases when a stepparent has assumed a parental role without adopting a child.
For example, in one case, New Jersey Courts found that a man was responsible for paying child support during a divorce case. The two children weren't biologically related to him. He hadn't adopted them. They were the daughters of his soon-to-be ex-wife, and their father was not only alive, but he'd refused to sign away his parental rights to let the husband adopt the children.
When the man divorced the girl's mother, she requested child support. The courts agreed with her because they found that the man:
- Had repeatedly attempted to block the biological father's access to the children
- Held himself as the girls' parent
In deciding this case, the judge looked at the details of the family's life and daily routine, such as the man's involvement in the girls' lives.
Each Child's Situation is Unique
The stepfather example also highlights how custody decisions should focus on the individual details of each case. Every case has its own facts and information, and that information should be a key consideration in a custody determination.
Each family is unique, and custody decisions should reflect that family's specific situation. For In Loco Parentis, providing evidence that's specific to the child and situation is all the more important. The Lento Law Firm Family Law Team can help people build that case.
When Does In Loco Parentis Apply?
For in loco parentis to be applied, a child's natural parent is out of the picture, unable to access the child, or unwilling to do so. In general, in loco parentis refers to situations when a parent is living but unable or unwilling to care for a child.
In some cases, this means a child hasn't spent the majority of their life with their biological parent. In loco parentis may also apply in cases when a parent's situation changes, such as a drug addiction or imprisonment, making them unable to care for a child.
For custody cases, in loco parentis generally doesn't apply when one parent either has or is willing to take on custody. When possible, courts want to place children with their parents.
Any adult who has a relationship with a child can petition for custody. While this is often stepparents or other relatives, any adult who has or wants to step into the role of a parent may apply for custody. This means that the adult is able and willing to provide emotional and financial support in addition to helping a child navigate their daily routine.
In determining when an adult is capable of taking on care for a child, the most important consideration is what's in a child's best interests.
Best Interests
In all custody cases, the key question is what's in a child's best interests. This is the case when divorcing parents are working out custody agreements or when a grandparent or other adult files for guardianship.
"Best interests" is a phrase that sounds simple on the surface but is a complicated consideration in practice. While most people can agree that a child's health, safety, and emotional well-being are crucial factors, a child's best interests go beyond those foundational issues.
Put another way, the question becomes who decides what's in a child's best interests. Different adults may have differing ideas about what's best for a child, such as whether a child would be better off living with a parent or with a relative. In cases that go before a judge, it's the judge who makes the call of what's best for a child.
Factors
While courts can consider any relevant factors when deciding what's in a child's best interests, New Jersey does provide some guidelines. While these are written to determine custody arrangements between parents, courts will likely use them for any custody hearing.
Relevant factors for custody include but are not limited to:
- A child's health and safety
- If an individual petitioning for custody will foster open communication between a child and their parents in situations when a parent is living but unable to care for a child but does have visitation rights
- Whether an individual is willing to accept custody
- Whether the individual petitioning for custody is capable of assuming care of a child
- A child's relationship with this individual
- How much time has this individual spent with the child?
- What was their previous relationship?
- If there's any history of domestic abuse or violence involving either the potential guardians or members of their household
- A child's needs
- If a child is old enough and has the ability to form an intelligent decision, the child's preferences
- The stability of the potential home environment
- The quality and stability of the child's education
- Will a child be able to continue at their current school?
- If moving to a new school, how does the new school compare to the child's current school?
- Where is a child's potential new home located compared to their current home or their parents' current location (in cases when parents cannot assume custody)
- If there is anything the potential guardian's conduct or life that would have a substantially adverse effect on the child
Courts may consider all, some, or none of these factors. They may consider factors not listed here, such as an individual's criminal record.
For child support, they may look at how to provide some level of stability to a child when an adult has been financially supporting them. Courts want to foster a level of stability and avoid sudden changes to a child's routine, which is one reason why non-parents may be obligated to pay child support.
Remember that if one parent is able to care for a child, courts will award custody to that parent. Courts will not, for example, split custody between one parent and a grandparent or award full custody to a grandparent when one parent is able to care for their child.
Custody Evaluation
Beyond these factors, families may undergo a custody evaluation. While this sounds intimidating, it's important to remember the purpose of these evaluations is to ensure a child is in a safe and stable environment.
The key to custody evaluations is to prepare. By knowing what to expect and planning ahead, individuals can demonstrate they are the best guardian for a child.
Custody evaluations may include:
- Interviews
- Observations
- Document review
- Psychological testing
Custody evaluations aren't about providing a perfect home or being the perfect guardian for a child. If you have concerns about the custody evaluation, contact the Lento Law Firm Family Law Team. We can help you prepare and demonstrate why you are the best choice to care for a child.
Visitation
In some cases, certain relatives can petition the court for visitation. This is different from in loco parentis because custody isn't at issue. Either parents or another adult has custody of the child, but New Jersey allows grandparents and siblings to petition for visitation.
Visitation allows a grandparent or sibling to maintain a relationship with a child. Individuals will generally take this step when they are otherwise being prevented from having a relationship with a child.
To petition for visitation, an individual must be:
- A sibling or grandparent
- Currently residing in New Jersey
- Able to produce evidence that visitation is in a child's best interests
Unlike in loco parentis custody, New Jersey doesn't allow stepparents or relatives other than grandparents or siblings to petition for visitation. This is the case even when stepparents and relatives have an established relationship with a child and have provided care for that child.
A Child's Best Interests
Children benefit from stable home situations and adults who put a premium on protecting their health and safety. In loco parentis recognizes that parents may not always be able to provide that environment or support for children.
In loco parentis may involve custody or support. Some adults may be petitioning for custody, while others may be attempting to limit support payments to children to whom they aren't related. In both cases, the question boils down to what's best for a child.
If you're an adult who either has or wants to take on a parental role in a child's life, contact the Lento Law Firm Family Law Team. We focus on the individual facts of each case. Call us at 888-535-3686 or contact us online.
