“In Loco Parentis” is Latin for ” in the place of a parent”. The Arkansas Supreme Court has defined in loco parentis as “in place of a parent; instead of a parent; charged factitiously with a parent’s rights, duties and responsibilities.” Standridge v. Standridge, 304 Ark. 364, 372, 803 S.W.2d. 496, 500 (1991). Although a very ancient doctrine, this is still an active doctrine under Arkansas Law.
Recently, I had a potential client (Mr. H) visit my office because he and his girlfriend had a tumultuous break-up after ten (10) years of living together. They had one minor child (S.H.) together who was 6 years old and that was clearly going to be a custody battle. We discussed Mr. H’s chances of getting custody of his minor daughter and he began to cry. Mr. H began to tell me about his girlfriend’s 13-year-old son, (D.M.), and how the child’s biological father was not in the picture and Mr. H had been raising this child and how bonded he was with D.M. D.M. actually referred to Mr. H as Dad. Mr. H never imagined he could also gain custody of his girlfriend’s son. In the end, Mr. H ended up with custody of his daughter because he was the better parent and D.M., the non-biological child, under the doctrine of in loco parentis.
A child develops an attachment bond with the adult who satisfies the child’s daily needs through interactions. In the above-stated set of facts, Mr. H was the one who had been meeting the day-to-day needs of D.M. for years. There was no doubt as the evidence developed that the D.M. turned to Mr. H for his emotional, financial and physical support just as he would a biological father. When the Court was presented with enough evidence of that fact, the Circuit Court placed D.M. in the physical and legal custody of Mr. H under the doctrine of in loco parentis.
Litigants are more likely to encounter the in loco parentis doctrine in a visitation situation. It is conceivable that both biological parents could be in a child’s life, but a stepparent could receive visitation rights under the doctrine of in loco parentis. A stepparent’s sexual orientation is irrelevant to the formation and importance of a parent-child relationship. In Bethany v. Jones, 2001 Ark. 67, 378 S.W.3rd 731, a 2011 Arkansas case, the minor child had two mothers and the Court found that both women in the same-sex relationship cared for and had a strong bond with the child. The non-biological mother received visitation with the minor child under the in loco parentis doctrine.
Grandparents who have been primary caretakers in a child’s life should probably proceed under Arkansas Code Annotated 9-13-103, the Grandparent visitation statute or Arkansas Code Annotated 9-13-101, the Grandparent custody statute.