Step Parents and Other Guardians Have Legal Rights and Obligations
Did you know that in Alberta, stepparents can be legally responsible for paying child support in the event of a separation? Often times, stepparents are considered to be in loco parentis which in Latin, means “in the place of a parent”. If a party is found to be in loco parentis, they have the same legal obligations to their stepchildren as parents do to their biological children.
What Does it Mean to Be in Loco Parentis
Most often, the concept of loco parentis is raised in order to determine one’s obligation to financially support a child following the breakdown of a relationship. If a party is found to be in loco parentis they may be legally required to pay child support in the same amount and for the same duration of time as if they had been the biological parent. However, being in loco parentis isn’t just about the financial obligations to a child, being in loco parentis also means that you have decision-making rights and responsibilities. As such, you are legally bound to weigh in on the medical and educational needs of the child, as well as day to day decisions such as who the child interacts with and what activities they are enrolled in. It is possible to waive decision-making obligations through a Court Order or Divorce Judgment should one not wish to exercise this legal right. However, as child support is the right of the child – this cannot be waived and must be paid in accordance with the Federal Child Support Guidelines.
What Is the Legal Test?
The Family Law Act outlines the threshold that must be met in order for a party to be considered in loco parentis. The first thing the court will determine is if the party in question is married to or in an adult interdependent relationship with the parent of the child. If so, the court will then look to determine if the party has demonstrated a settled intention to treat the child as if they are their own. If the answer is yes, then the court will begin a facts-based analysis. Some of the factors that the Court will take into consideration when determining if a party shall be considered in loco parentis are:
- The age of the child;
- The length of the relationship between the party and the child’s biological parent;
- If the party has historically been responsible for meeting the emotional and financial needs of the child;
- The relationship between the child and both biological parents; and
- If adoption was ever discussed or initiated.
This is not an exclusive list of factors that the court will consider but it does provide some necessary framework for parties and family law lawyers to use when determining if a party is in loco parentis.
Can Grandparents Be in Loco Parentis?
If grandparents, or any other relative, have been the custodial parent to a child for a significant amount of time, they can be found to be in loco parentis. Often, if parents are unable to raise their children for any reason, grandparents’ step in to assist and may become the legal guardians of their grandchildren. If the child’s biological parents then make an application for custody of the child, the grandparents may have a strong claim for continuing to have custody and decision-making rights of the child. However, the test will always come down to the best interest of the child.
If you have questions with respect to being in loco parentis, connect with us today to learn more.