In Loco Parentis

The Latin term in loco parentis, which means “in place of a parent,” or “instead of a parent,” refers to situations in which someone other than a biological parent takes on the role of parent to a minor child without formally adopting the child. This situation applies to legal guardians, stepparents, grand parents, and other situations in which an individual has taken on parental duties. Such a relationship has unique significance for insurance law, as well as employment and Workers’ Compensation law. To explore this concept, consider the following in loco parentis definition.

Definition of In Loco Parentis

Noun

  1. In the place or role of a parent, as in a person acting in a parental capacity.

Origin

1855     Latin (in place of a parent)

(The motto adopted by England’s Cheadle Hulme School, which was established to care for and educate orphans and children of distressed parents)

History of In Loco Parentis in Education

In early 19th century England, life expectancy was poor, and parents worried what would happen to their children should they die. In 1855, the Cheadle Hulme School, originally named The Manchester Warehousemen and Clerks’ Orphan School, was established to care for children who had lost their fathers. Because fathers had sole responsibility for, and control of, their children, these children were considered to be orphans. The school adopted the motto in loco parentis to describe its dedication to caring for and educating the children in their custody.

The term in loco parentis became a legal precedent applied to wards of the court, gaining legal standing in the educational field. This concept was adopted in the U.S., where primary and secondary schools, as well as colleges and universities, were permitted to act in loco parentis for their students. As a result, schools were given broad discretionary power and authority in restricting and disciplining students, one court stating in 1866, “…we have no more authority to interfere than we have to control the domestic discipline of a father in his family.”

Roadblock to Students’ Rights

The doctrine of in loco parentis allowed schools to place restrictions on students’ behaviors, both in school and out, and allowed them to punish students in a parent’s stead. Such restrictions included sex-segregated dormitories, curfews imposed differently on women than men, and the expulsion of female students who were “morally undesirable.” Colleges and universities also sought to restrict students’ right to free speech, forbidding student organizations from demonstrating on campus.

In the 1960s and 1970s, in loco parentis met public opposition, especially where it applied to imposing the will of educators on adult students. Following a number of landmark rulings by the U.S. Supreme Court, the application of in loco parentis disappeared from institutions of higher education in the U.S., though it still applies to some extent in primary and secondary schools.

In Loco Parentis in Labor Law

The Family Medical Leave Act (“FMLA”) helps protect the sanctity of the family by requiring employers to allow employees to take time off to care for a family member without losing their jobs. The FMLA guarantees up to 12 weeks of unpaid, job-protected leave for the birth of, and bonding with, a child, or to care for a sick child or parent.

While the FMLA defines an employee’s child as “a biological, adopted, or foster child, a stepchild, a legal ward …” it also specifically names “a child of a person standing in loco parentis.” This broad definition reflects the reality of family relationships in the U.S., where many children live with guardians other than their biological parents. In this way, an employee who is responsible for the day-to-day care of a child is entitled to the same job-protected leave as biological parents.

Determining In Loco Parentis Under the FMLA

Under the FMLA, in loco parentis refers to relationships in which an individual has assumed the responsibilities and duties of a parent to a child where there is no biological or legal connection. The term applies when such an individual acts with the intention of taking on the role of parent, providing for the day-to-day care of a child. Factors considered by the court in determining whether an in loco parentis relationship exists include:

  • The age of the child
  • The degree to which the child is dependent, physically and/or financially, on the individual
  • The amount of financial support provided the child by the individual
  • The extent to which the individual performs duties commonly associated with being a parent

The FMLA places no limitation on the number of parents a child may have, making it immaterial whether the child has a biological parent in the home, or has both a mother and father. The specific facts of each case determine whether an employee holds the status of in loco parentis to a child.

Examples of In Loco Parentis Relationships

There are many common situations in which individuals stand in loco parentis, and are eligible for leave under the FMLA. These may include:

  • A grandparent who has an ongoing responsibility for raising a grandchild may take leave if the child has a serious health condition.
  • An aunt or uncle, who takes on the responsibility of caring for a child after the death of his parents may take leave if the child has a serious health condition.
  • A same-sex partner, who will co-parent a biological child, may take leave for the child’s birth, and for bonding with the child.

Related Legal Terms and Issues

  • Legal Guardian – A person chosen to act as a child’s primary caretaker, whether selected by the child’s biological parents, or appointed by the court.
  • Orphan – A child who has lost both parents through death.
  • Ward of the Court – A person, usually a child or an adult of unsound mind, placed in the care of a guardian by order of a court, and who is directly subject to the authority of that court.

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