When a non-parent assumes care of a child, they're acting in loco parentis. Latin for "in place of parents," this legal doctrine is about situations when an adult other than a child's legal parent assumes a parental role. In New Jersey, this doctrine is often applied in custody and support cases.
While children cannot take out restraining orders in New Jersey, their care may be at issue. Non-parents may be required to support them, and in some cases, a non-parent may step in to assume custody, especially in cases of abuse and neglect.
If you have custody issues in New Jersey or are a non-parent seeking to take responsibility for a child, the Lento Law Firm Family Law Team can help. We assist parents, guardians, and families with a focus on protecting children's best interests. We work with our clients to ensure they understand their options and can reach a resolution that protects a child's best interests. Call us at 888-535-3686 or contact us online.
What is In Loco Parentis?
In loco parentis refers to a non-parent assuming a duty of care to a child. It's commonly used in school settings as schools adopt a quasi-parental role during the school day. It can also refer to situations when a non-parent assumes care of a child.
This doctrine applies to both caring for a child on a day-to-day basis and providing financial support. New Jersey, for example, has found that stepparents may be obligated to financially support children in a divorce. This can be the case even when the adult hasn't formally adopted the children and the children's parents are still alive and able to care for the children.
When discussing in loco parentis, legal professionals may use other terms, which can include:
- Legal guardian
- Custodial or parental responsibility
- De facto or surrogate parent
- Parental responsibility
A Child's Best Interests
The controlling question in custody determinations is what's in a child's best interests. While courts consider a variety of factors, the key question is what's best for children.
This question also applies for in loco parentis determinations. Courts will look at a variety of factors to help make this decision. One of the top considerations is a child's well-being, especially ensuring that they aren't in a home that puts them at risk for abuse and neglect.
When in loco parentis involves restraining orders, there's a high likelihood that a child's safety is a factor in any determination. Protecting a child from abuse, neglect, or other dangerous situations is important. The Lento Law Firm Family Law Team can help our clients protect children and make sure they're in safe home environments.
Restraining Orders in New Jersey
New Jersey allows the following individuals to file a restraining order:
- A current or former spouse
- A current or former household member
- A person they share a child with
- Someone with whom they have had a romantic or intimate relationship with
Individuals must be over 18 years of age. Children may file a restraining order against a parent, but only if they are either over 18 or emancipated.
There are two types of restraining orders in New Jersey: temporary restraining orders (TRO) and final restraining orders (FRO). TROs last ten days.
In New Jersey, FROs are permanent and can only be granted after a court hearing. While some states issue FROs for a period of years, New Jersey's have no end date. In New Jersey, the only way an FRO can be lifted is if a victim requests it be lifted. A judge must approve ending the FRO.
Individuals can file for emergency restraining orders when they believe they or others are an imminent threat of violence or danger.
Restraining Orders and Children
In New Jersey, only individuals over 18 years old can take out restraining orders. That doesn't mean that New Jersey doesn't recognize that children can be subjected to abuse and neglect.
The Division of Child Protection and Permanency (CP&P), which is within the Department of Children and Families (DCF), investigates reports of child abuse in New Jersey.
New Jersey defines child abuse as:
- A harmful action against anyone under the age of 18
- Cause by a child's parent or other caregiver
- Abuse can be:
- Emotional
- Physical
- Sexual
- Risk or threats of harm
The state defines neglect as a parent or caregiver failing to provide a child with proper supervision, adequate food, clothing, shelter, education, or medical care. A parent has the financial means or support to provide this care but does not.
A child may not be directly involved in a restraining order, but they may be indirectly affected. One parent may take out a restraining order against the other parent.
That a restraining order has been taken out against a child's parent doesn't automatically mean a child is in danger of abuse or neglect.
Restraining Orders, Child Custody, and In Loco Parentis
A parent having a restraining order against them does not mean they automatically lose custody of their child. Parents who share custody may continue to share custody with a neutral third party handling custody handoffs.
The question is if a child is in danger from their parent. Courts will consider the specific circumstances of the case, such as:
- What's in the best interests of the child?
- This is often the controlling question when determining child custody
- Does the parent present an immediate danger to the child?
- What are both parents' financial circumstances?
- Courts will rarely decide custody based on a parent's financial position
- Does either parent have a history of domestic violence?
New Jersey prefers to allow children to maintain a relationship with both parents. Even if a parent is deemed unfit for custody, courts may still grant supervised visitation.
Emergency Support and In Loco Parentis
During a hearing for a temporary restraining order (TRO), a court may award financial support to a parent or child. Emergency support isn't payable through the court, and any support order should include how the support is to be paid. For example, payment may be made through a neutral third party or via direct deposit.
Where in loco parentis applies is if a spouse is taking out a restraining order against a spouse who is not the biological or legal guardian of their children. In these situations and depending on the family's situation, courts may order the non-parent to support the children.
Two Examples: Restraining Orders and In Loco Parentis
Courts will often look at the financial arrangements a couple makes when deciding on whether to award support related to a TRO. One reason that courts order support is to make it more difficult for an abusive spouse to use financial coercion to force a spouse back into a marriage.
In one case, Spouse A married Spouse B. Spouse A had two children from a previous relationship and one child with Spouse B. Spouse B had a large income, and Spouse A stayed home with all three children. Spouse B was abusive, and Spouse A filed for a TRO.
In this case, a court is more likely to award support, including finding Spouse B acted in loco parentis to all three children. By providing for them financially during the marriage, Spouse B created a duty of care, and a court is more likely to continue that support.
In a second case, Spouse C and Spouse D married. Spouse C had one child from a previous relationship and had a larger salary than Spouse D. Spouse C received child support from their previous partner, and Spouse D didn't financially provide for the child.
In general, a court is less likely to require support in this situation. Spouse D hasn't established a duty of care for the child, and Spouse C's income and child support cover care for the child.
These are generic examples. Other facts or information about either case may affect a support order related to a TRO. If you have questions about how a support order may involved in loco parentis, contact the Lento Law Firm Family Law Team.
Emergency Custody
Sometimes, children aren't safe with their parents, so immediate action is needed. In these cases, an adult may file for emergency custody. This will expedite a case, and requests for emergent hearings should be made only when a child is in imminent threat of harm.
In New Jersey, emergency custody orders are temporary. In other words, an adult assumes the in loco parentis role to protect a child.
Emergency hearings are usually conducted within days. A judge will make a decision on temporary custody ahead of a full trial.
If you believe a child is in danger, contact the Lento Law Firm Family Law Team. We can help you determine the best option, given the child's situation and your relationship with the child.
DC&P Placement
Following an investigation, CP&P may determine that a child isn't safe in their current home or with their parents. In these cases, CP&P will place a child with either family members, friends, or in a foster home.
Depending on the situation, CP&P may ask parents for the names of relatives or friends who can care for a child. This generally occurs in non-emergency situations.
CP&P may remove a child in emergency circumstances without a court order. However, they must request court approval within two days of a child's removal.
These placements don't end a parent's rights. Essentially, another adult assumes in loco parentis responsibilities until a parent is again able to care for their child.
Kinship Legal Guardianship
When a parent is unable to raise a child, adults may become a kinship legal guardian. Adults may qualify as a kinship legal guardian when they are:
- A relative
- Close family friend
- Other adult
A court will appoint this individual to raise a child.
When a child is under a kinship legal guardianship, their parents' rights aren't terminated. Parents are still financially responsible for the child, and parents may petition for visitation.
In general, to qualify as a kinship legal guardian, an adult must have provided care for a child for at least one year and accept responsibility for the child until the child turns 18. If a child is disabled, that age rises to 21.
Termination of Parental Rights
In rare circumstances, CP&P may determine that a parent won't be able to provide a child with a safe environment. In these cases, CP&P will file to terminate parental rights.
Following termination of parental rights, a child may be adopted. In this situation, the in loco parentis doctrine no longer applies. This is because another adult is permanently assuming parental responsibilities. Legally, they have become a child's parent.
A restraining order alone is rarely sufficient to terminate a parental rights. In these situations, a restraining order is likely one piece of evidence of a larger situation.
Protecting Children
At its heart, the goal of in loco parentis is to provide all children with at least one adult capable of providing them with care and protection. While a restraining order doesn't automatically mean a parent is a danger to a child, it can indicate a child is in an unsafe space.
All children deserve the opportunity to live in a household free of abuse, neglect, or other dangers. The in loco parentis doctrine can help in providing children with a safe space while still maintaining a parent's rights to their child. Ideally, a child can return to their parents once their home situation is again safe.
Ideally, children can stay with their parents, but in some situations, a trusted relative, family friend, or other adult can provide stability. Parents may still have visitation or be financially responsible for a child.
In other cases, a non-legal parent may be required to provide financial support to a child that relates to a restraining order. This financial support isn't a punishment but rather a way to protect children from abusive or dangerous situations.
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.
