What the "in loco parentis"? Or, what about step-parents?

More and more, I have clients who come to me with questions regarding step-parent visitation. The sad fact is this - second marriages have a much higher rate of divorce than first marriages (60% -70%), and third and forth marriages end in divorce at much higher rates still. (See http://answers.google.com/answers/threadview?id=363986). As a consequence of the high divorce rate and high re-marriage rate of divorced parents, step-parents are often involved in the raising of their spouse's children. So, what happens if the second marriage ends in divorce? What rights does the step-parent have?


In Utah, the case law on this subject has a somewhat colorful and contradictory past. In the 1978 case of Gribble v. Gribble, 583 P.2d 64 (Utah 1978), the Utah Supreme Court interpreted a prior version of the divorce statute (Utah Code Ann. 30-3-5) as granting step-parents standing to petition for visitation with their spouse's children. See 583 P.2d at 68. The supreme court reasoned that if a stepparent stands "'in loco parentis, he [or she] should be considered a parent for purposes of [section] 30-3-5' because a stepparent who has 'assumed the status of one in loco parentis to the child . . . [is] in a different position' than other persons unrelated to the child. (The term 'in loco parentis' means in the place of a parent, and a 'person in loco parentis' is one who has assumed the status and obligations of a parent . . . .). Id. In so reasoning, the supreme court also stated that only a stepparent or a child could terminate the in loco parentis relationship at will (i.e. as the parent chooses). Or, in other words, so long as the step-parent had acted in the role of a parent during the marriage and so long as the step-parent wanted to continue to have visitation with their spouse's child the spouse could not unilaterally cut off visitation. Of note, Gribble did not specifically answer the question of whether a step-parent could seek custody of their spouse's child.



In 1990, the Utah Supreme Court revisited the issue in the case of In re J.W.F. (Schoolcraft), 799 P.2d 710 (Utah 1990), when it again addressed the issue of a stepparent's rights with respect to his or her spouse's children. In Schoolcraft, the supreme court concluded that a stepfather had standing to petition for custody of a child not biologically his own but born to the mother during the mother and stepfather's marriage. See id. at 716. The Schoolcraft court contemplated several bases for standing but reasoned that standing should be determined in light of a "person's legal relationship to the child," such as being "married to the child's natural . . . parent." Id. at 715-16


The Utah Supreme Court yet again revisited the issue of whether a person legally unrelated to a child has standing to petition a court for visitation in the case of Jones v.
Barlow, 2007 UT 20, 154 P.3d 808. The facts of the Jones were unique in that the step-parent was the lesbian partner (the parties entered into a civil union in Vermont) of the biological mother. From birth until the parties separated when the child was two years old, Jones filled the parental role for the minor child. (For a more complete discussion of the implications of Jones see Marx, Shane A. "A Best-Interest Inquiry: The Missing Ingredient in Utah Family
Law For Children of Alternative Families—Jones v. Barlow", 11 JOURNAL OF LAW & FAMILY STUDIES 157.

In that case, the Utah Supreme Court held "that the doctrine of in loco parentis . . . does not independently grant standing to seek visitation after the in loco parentis relationship has ended." In essence, just because you stepped into the role of a parent does not mean that you have the right to request visitation or custody. The supreme court distinguished Jones from Gribble, noting the stepparent's "standing in [Gribble] arose out of an interpretation of statutory law granting such rights, not from an independent common law source." In addition, the supreme court corrected a "misstatement of law" made in Gribble regarding the at-will termination of the in loco parentis relationship, stating, "[T]here is nothing in the authorities we cited in Gribble justifying the conclusion that the in loco parentis status may be terminated by only the surrogate parent or the child." In plain English, the court was saying, that when we said that the child's legal parent could not unilaterally withhold visitation to the step-parent, we were wrong. The court clarified that "a fit legal parent[] . . . . may freely terminate the in loco parentis status by removing her child from the relationship, thereby extinguishing all parentlike rights and responsibilities vested in the former surrogate parent."

As a result of the Jones ruling, not only did Jones lose visitation rights to the minor child, but the Utah Supreme Court's ruling potentially could have had widespread impact on step-parent rights. Indeed, in the 2008 Utah Court of Appeals decision of Strauss v. Tushman,
2009 UT App 215 that court applied the reasoning of Jones to a stepfather seeking visitation of the minor child he helped raise during an eight year marriage. The court held that while the father had in loco parentis relationship with the minor child while he was married to the child's mother, his legal relationship with the child ended when the parties divorced, at which time Mother could terminate Stepfather's in loco parentis status at will. "Because the legal relationship between the parties ended in divorce and Mother in fact terminated Stepfather's status, Stepfather lost the standing to petition for visitation with Child." Id. In other words, upon divorce of the step-parent from the child's parent, the ex-spouse could cut off visitation for any reason.

As a result of the potentially wide spread impact of the Jones case on traditional step parent relationships, in 2008 the Utah State Legislature enacted the Custody and Visitation for Persons Other Than Parents Act (the Act). See Utah Code Ann. §§ 30-5a-101 to -103 (Supp. 2008) (effective May 5, 2008). Even though the statute was enacted prior to the Strauss decision, because the Act was not retroactive, it was inapplicable to the Strauss decision. Accordingly, the clarification announced in Strauss applies to only a narrow time frame - only to cases arising after Jones but before the Act's effective date.

In summary, the availability of visitation for step-parents (and grandparents and other close relatives) now appears to be governed by the Custody and Visitation for Persons Other Than Parents Act, which establishes a rebuttable presumption that the parent's decisions are in the best interest of the child. However, this presumption can be overcome by the step-parent showing (by clear and convincing evidence) all of the following:

(a) the person has intentionally assumed the role and obligations of a parent;
(b) the person and the child have formed an emotional bond and created a parent-child type relationship;
(c) the person contributed emotionally or financially to the child's well being;
(d) assumption of the parental role is not the result of a financially compensated surrogate care arrangement;
(e) continuation of the relationship between the person and the child would be in the child's best interests;
(f) loss or cessation of the relationship between the person and the child would be detrimental to the child; and
(g) the [other] parent: (i) is absent; or (ii) is found by a court to have abused or neglected the child.

This statute has some built in definitional curiosities. First, the definition of a "person other than a parent" includes both grandparents and "current or former step-parents". Also of note, it includes step-grandparents, step siblings, step-aunts or uncles. What is unclear, is how 30-5-2, the existing section on grandparent visitation rights, should be read with the new Act (a subject for another day perhaps).

Also, potentially problematic is the definition of "parent". In all of the case law on in loco parentis, the other biological parent is no longer in the picture. For example, it would appear that in most of the cases discussed above the other biological parent had presumably waived their parental rights or was no longer in the picture. Subsection 2(g) requires a showing that the parent is absent or is found by a court to have abused or neglected the child. In the case of the step parent seeking visitation or custody, is the "parent" being referenced the non-spouse, or the spouse? If a situation were to arise where the other biological parent (the non-spouse) is still in the picture, does the step-parent also have to show by clear and convincing evidence the elements set forth in the statute as to the spouse and non-spouse parents? It would appear from an interpretation of the in loco parentis case law is that the "parent" referenced in subsection 2(g) is the non-spouse parent.

Because the appellate courts have yet to interpret this statute, it is not absolutely clear how this statute will be applied to step-parents. However, one thing seems to be clear from the plain language of this new statute: gay and lesbian partners are not included in the definitional sections as a person other than a parent entitled to petition for custody or visitation, and accordingly, the Jones case would still govern those cases and the biological parent can unilaterally sever the relationship without much recourse by the other domestic partner.