The DC Court of Appeals early on in Fuller v. Fuller, 247 A. 2d (1968) defined the term as a person who willingly puts himself in the role of legal parenting of a child, that is day to day care of the child such as: providing subsistence, food, shelter, medical care, etc – without going through the formalities of a court decreed legal relationship such as child custody, guardianship or adoption.  In short, assuming parental status and discharging the parental duties without legally being required to do so.

Traditionally and often the grandparents who take over the parenting of a child when the natural parents fails to do so – fall under this category.  However, with acting as a parent comes the long arm of the DC neglect statute.  That is, if you have assumed a parenting role and in the process you have legally neglected the child, as a natural parent can, you may be prosecuted under the neglect statute.  However, the formula is less clear when it comes to parenting in loco parentis.

The Fuller Court made it clear that legal relationship is rather nebulous and malleable and may be temporary depending on the intention of the party assuming the obligation.  The relationship may be terminated at any time by the one standing in loco parentis.  That it may be abrogated and it is not legally inherent.

The Court of Appeals recently in In re. K.J., 11 A.3d 273 (2011), further analyzed and dissected the legal term and better defined parameters.   The court held that the in loco parentis grandmother did not neglect the child when she refused to allow the child back to her home after the child ran away and due to the child’s persistent and continued unruly unmanageable behavior.  The Court held that “ [t]o establish neglect it must be shown that the grandmother left K.J. “without” one of the statutory requirements of “proper parental care or control, subsistence, education as required by law, or other care or control necessary for his or her physical, mental, or emotional health.” D.C.Code § 16-2301(9)(A)(ii).  After K.J. left her grandmother’s house she was briefly at her godmother’s house and then was in the custody of the CFSA”.

There was also a public policy argument presented at the oral arguments phase of this case not mentioned in the written ruling, but most certainly was persuasive and contributed to the Court’s overall ruling.  That is, often times when natural parents neglect the children, either close relatives or friends of the family step up and assume day to day care of the neglected child.  They selflessly and often times without receiving proper subsidy for the child, provide care to the best of their abilities.  The neglect statute should not prosecute such in loco parentis caretakers when they discontinue care as long as there is continuity of care and the child is not left without proper parental care and control in the transition.   Otherwise willing able family resources would be discouraged from providing much needed care for the child in order to avoid being prosecuted for neglect.  This does not serve the neglect system as it eliminates viable willing caretakers.

In re. K.J., was successfully argued and won on appeal on behalf of the in loco parentis grandmother by the Law Offices of David Stein.

Categories: Family Law.