Non-Parental Custody/In Loco Parentis

A Title 25 non-parent custody proceeding is a court action in which a person who is not a parent, but has acted in loco parentis, may petition the court for custody of a child.  In loco parentis is a Latin phrase meaning in place or in lieu of a parent or a person who has been treated as a parent by the child and who has formed a meaningful parental relationship with the child for a substantial period of time.

A child custody proceeding may be commenced in the superior court by a person other than a legal parent by filing a verified petition, or by a petition supported by an affidavit, in the county in which the child is permanently resident or is found.  The person filing the verified petition must allege that he/she has been treated as a parent by the child and the petitioner has formed a meaningful parental relationship with the child for a substantial period of time.

Further, the person filing the petition must show that he/she stands in loco parentis to the child, it would be significantly detrimental to the child to remain or be placed in the custody of either of the child's living legal parents who wish to retain or obtain custody, and that a court of competent jurisdiction has not entered or approved an order concerning the child's custody within one year before the person filed a petition pursuant to this section, unless there is reason to believe the child's present environment may seriously endanger the child's physical, mental, moral or emotional health.

One of the following must be true to file a petition for in loco parentis:

(1) One of the legal parents is deceased.

(2) The child's legal parents are not married to each other at the time the petition is filed.

(c) There is a pending proceeding for dissolution of marriage or for legal separation of the legal parents at the time the petition is filed.

If a person other than a child's legal parent is seeking custody there is a rebuttable presumption that it is in the child's best interest to award custody to a legal parent because of the physical, psychological and emotional needs of the child to be reared by the child's legal parent. To rebut this presumption that person must show by clear and convincing evidence that awarding custody to a legal parent is not in the child's best interests.  To be clear and convincing, it must be highly probable that an event or fact is true.

A person shall file proceedings for custody or visitation under the same action in which the legal parents had their marriage dissolved or any other proceeding in which a previous custody order has been entered regarding the child.