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In loco parentis is a legal doctrine describing a relationship similar to that of a parent to a child. It refers to an individual who assumes parental status and responsibilities for another individual, usually a young person, without formally adopting that person. For example, legal guardians are said to stand in loco parentis with respect to their wards, creating a relationship that has special implications for insurance and Workers' Compensation law.
By far the most common usage of in loco parentis relates to teachers and students. For hundreds of years, the English common-law concept shaped the rights and responsibilities of public school teachers: until the late nineteenth century, their legal authority over students was as broad as that of parents. Changes in U.S. education, concurrent with a broader reading by courts of the rights of students, began bringing the concept into disrepute by the 1960s. Cultural changes, however, brought a resurgence of the doctrine in the twenty-first century.
Taking root in colonial American schools, in loco parentis was an idea derived from English Common Law. The colonists borrowed it from the English ideal of schools having not only educational but also moral responsibility for students. The idea especially suited the puritanical values of the colonists, and after the American Revolution, it persisted in elementary and high schools, colleges, and universities. The judiciary respected it: like their English counterparts, U.S. courts in the nineteenth century were unwilling to interfere when students brought grievances, particularly in the area of rules, discipline, and expulsion.
But the underlying premise of in loco parentis did not disappear completely from public schools. For example, in 1977, the Supreme Court held that the disciplinary paddling of public school students was not a Cruel and Unusual Punishment prohibited by the Eighth Amendment (Ingraham v. Wright, 430 U.S. 651, 97 S. Ct. 1401, 51 L. Ed. 2d 711), and that students who were disciplined in a school setting were not denied due process under the Fourteenth Amendment. Since then, several cases have challenged this ruling, and U.S. district courts have attempted to clarify the rights of students regarding Corporal Punishment (Hall v. Tawney, 621 F. 2d 607, 613 [4th Cir. 1980]; Garcia v. Miera, 817 F. 2d 650, 653 [10th Cir. 1987]; Neal ex real. Neal v. Fulton County Board of Education 229 F. 3d 1069 [11th Cir. 2000]).
In the 1980s, new issues involving the in loco parentis doctrine arose at public schools, colleges, and universities. The Reagan administration's war on drugs led to the passage of the Drug-Free Schools and Campuses Act of 1989 (Pub.L. 101-226, December 12, 1989, 103 Stat. 1928). The act bans the unlawful use, possession, or distribution of drugs and alcohol by students and employees on school grounds and college campuses. As a result, most campuses began to enforce Zero Tolerance drug polices. In 1995, the Supreme Court ruled that high schools were permitted to conduct random drug testing of student athletes (Vernonia School District v. Acton, 515 U.S. 646, 115 S. Ct. 2386, 132 L. Ed. 2d 564). According to the Court, such testing does not violate the reasonable Search and Seizure clause of the Fourth Amendment because students in school are under state supervision, and as such, the state (and the school) is responsible for their well-being. The Court extended permissable drug testing to any student who wishes to participate in extracurricular activities in Board of Education, Pottawatomie County v. Earls, 536 U. S. 822, 122 S. Ct. 2559, 153 L. Ed. 2d 735 (2002).
By the 1990s, and into the 2000s, the loco parentis doctrine seemed to be in full force as schools attempted to safeguard students. Many institutions enacted controversial rules governing dress codes and so-called hate speech, all in the name of protecting students. Violence on campuses, however, became a very real threat. In 1994, Congress enacted a federal policy toward weapons on school grounds when it passed the Gun-Free Schools Act of 1994 (Pub. L. 103-382, Title I, 101, October 20, 1994, 198 Stat. 3907). According to the act, schools are required to expel students who are found in possession of a gun. After the 1999 Columbine, Colorado, shootings, reinforcement of this act escalated, and schools enforced zero tolerance policies toward the possession of any article that may pose a potential threat. As a result, students have been expelled from school for having such items as nail files, plastic knives, and model rockets. Although many students and parents filed lawsuits in protest, most cases were denied since, according to the courts, school authorities have the right to maintain school safety.
prep. (in loh-coh pah-rent-iss) Latin for "instead of a parent" or "in place of a parent," this phrase identifies a foster parent, a county custodial agency or a boarding school which is taking care of a minor, including protecting his/her rights. Thus, Boys' Town is legally in loco parentis to Johnny Boarder, aged 15, if and when he needs legal help.
School authority over children in the US was historically justified by reference to the in loco parentis doctrine since State v. Pendergrass, 19 N.C. 365, granting school "the authority necessary for preserving discipline", which is "analogous to that which belongs to parents, and the authority of the teacher is regarded as a delegation of parental authority". More contemporary rulings on the question of school authority, again in the domain of corporal punishment,as articulated in Ingraham v. Wright, 430 U.S. 651 find that
In other words, the courts do not rely on the parental doctrine to justify school authority, instead they rely on what is reasonably necessary to achieve an end. Thus in New Jersey v. T.L.O, 469 U.S. 325, in loco parentis was rejected as a rationale for an unconstitutional search, reasoning
Since school authority to confiscate cell phones does not rest on acting according to the wishes of the parent, it is irrelevant that the parent approves of the child's actions. They may take the phone away, but it is not because of in loco parentis, it's because of necessity. It does not matter whose property it is; and it is not theft, because the confiscation was lawful.
Cash and medical assistance for children who are in the care of a relative of specified degree or a legal guardian or custodian. Adults who act "in loco parentis" or in the place of a parent may also be eligible.
Attorneys often speak a language that sounds foreign to many people today. Much of this legalese stems from Latin terms that represent the foundation of our modern legal codes. One of those terms can play a big role in legal custody cases: in loco parentis.
It is up to the court to decide if an individual does indeed fulfill the criteria to act in place of the parent. But being given the loco parentis status by the court does not guarantee or grant custody. It simply means the court has decided the individual has standing to pursue custodial rights. There are three main factors that determine if a person is adequate to act in loco parentis: the discharge of parental duties, the asumption of parental status and the consent of the parent.
Family dynamics today can be very complicated and every situation is different. If you believe you should have rights to the custody of a child, even partial custody, you need to seek for specific legal advice of legal counsel. Case law on this matter varies and the best way to ensure the court will award you in loco parentis standing and therefore have the right to pursue child custody is to have us review the specifics of your situation and determine the best course of action moving forward. Call us (717) 502-5000.
I raised Thane since he was 8/9 months old,he's 12 years old now,every holiday,90, percent time he's with me,now his mom back in jail again for years ,dad is career criminal ,the school has assumed for year,I guess this is loco parentis,now his mom dad gram have shared legal ,gram has primary physical custody,we lived together ,split up 6/7 years ago,but Thane stays with me.now school knows ,I live on social security disability pay rent lights ,car life insurance ,have cable internet phone get 1035 a month ,HELP
In place of a parent: used loosely to describe anyone looking after children on behalf of the parents, e.g. foster parents or relatives. In law, however, only a guardian or a person in whose favour a residence order is made stands in loco parentis; their rights and duties are determined by statutory provisions.
In what is becoming one of the hottest topics in Pennsylvania Child Custody Law, in loco parentis took center stage before the Superior Court in the recent case of MJS v. BB v. BB, ___ A.3d ___, 2017 Pa. Super 327 (Oct. 17). This case is one of three cases to address in loco parentis status by a litigant in a child custody case recently. The recent case of KW v. SL and ML v. GG, addressed in loco parentis status and parties with whom a child was placed for adoption. A week prior to the present case being decided, the superior court also addressed in loco parentis status in the case of CG v. JH, which pertained to a same sex couple. Both cases were reported on by this author in April 2017 and December 2017, respectively.
This case is extremely important for the family law practitioner and the bench. It reiterates that there is a strong presumption in favor of a parent versus a third-party in child custody disputes when primary physical custody is at issue. The mere fact that a party obtains standing through in loco parentis or solely under the grandparent factors, the party remains a third-party and the presumption of custody remains for the parent and the high hurdle of a clear and convincing evidence burden is on the third party to overcome. With regard to the issue of in loco parentis, it appears that with each case that gets decided by the Superior Court and reported, the target is ever moving. It is clear that there are three elements to be met in order to achieve in loco parentis standing: the assumption of parental status; the discharge of parental duties; and the consent and knowledge of the parent. However, the application of those three prongs is not necessarily precisely consistent.
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