Do you know anything about Loco Parentis Doctrine?

[patton]

Soc,

I'm looking for information on Loco Parentis Doctrine. which mean in the position or place of a parent.  

Father is Temporary Sole conservator (CP) and both maternal grandparents and mother are temporary possessory conservators  (NCP).

Court order read as:

IT IS ORDERED, that during their respective periods of possession, father as parent temporary sole managing conservator, and grandparents  (ONLY- no mention of the mother), as parent temporary possessory conservators, shall each have the following rights and duties:

It then list the 5 rights, and then goes on to say:

IT IS ORDERED that the father, as parent temporary sole managing conservator, shall the following exclusive rights and duty:

3. the right to receive and give receipt for periodic payments for the support fo the child and to hold or disburse these funds for the benefit of the child;

The mother was NOT given any rights, as she  did not appear. She is on state mental disability and is on probation for 4 years for child endangerment.  The grandparents were given the standard visitation for the State of Texas as possessory conservators.

1).  So if the grandparents are the possessory conservators, why are they not paying child support?

2) The Loco Parentis Doctrine seems to fit here.  Can we use this?

3) Does the Attorney General office only go after mothers and fathers for child support?  Not the Grandparents, standing in as the parents?

I'm getting a lot of conflicting information, so if you could help it would be appreciated.





 

[socrateaser]

Loco Parentis doctrine is the common law (i.e., court made) law that creates parental rights and obligations in a person who voluntarily assumes the role of parent. Your facts support the position that the court has created loco parentis standing in the grandparents, therefore it would seem that you could demand that the grandparents pay child support.

However, common law has never imposed an obligation to pay child support, not even upon a parent, much less on a grandparent or other third party. This doctrine is supported by the only TX appellate court ruling on the subject: Blalock v. Blalock, 559 S.W.2d 442 (1977), which states that a grandparent cannot be ordered to pay support for the benefit of his/her grandchild.

This is not the end of the analysis. The Blalock decision was made prior to the enormous changes to child support laws that were instituted during the 1990s, so it is possible that a recently enacted statute in the TX Family Code could provide you with authority to challenge this earlier decision (a statute trumps the common law). I don't have time to read the TX Code, so I suggest that you locate the provision(s) that create the statutory duty of child support and post them for me.

I do know that in TX, if a person or entity is obligated to pay money to a person who owes a duty of child support , then the obligated person/entity can be ordered to direct those payments to the support obligee, which in your case would be you. On this theory, if you can show that the grandparents have a duty of support to their child, under the current circumstances (which could be possible if you can show that the child cannot support herself), and you can obtain an order for the grandparents to pay support for their child (this could be very difficult, because you may not have standing to sue the grandparents on behalf of the child's mother), then you could get an order for the grandparents to pay a portion of that support to you.

All of this assumes that there is no TX statute that directly obligates grandparents to pay support for their grandchildren, which I'm sure is the case, as if it weren't, then the TX AG would have used that statute to order support payment in your favor.

[patton]

CHAPTER 154. CHILD SUPPORT


SUBCHAPTER A. COURT-ORDERED CHILD SUPPORT

§ 154.001.  SUPPORT OF CHILD.  (a)  The court may order
either or both parents to support a child in the manner specified by
the order:

Order states: that grandparents are "parent temporary possessory conservators" and father, "parent temporary sole managing conservator" has the right to receive and give receipt for periodic payments for the support of the child to hold or disburse these funds for the benefit of the child.

Question 1.  Since the Court Order has given the grandparents the status of parent temporary possessory, will this show they are standing in as the mother/parent?

§ 153.376.  RIGHTS AND DUTIES OF NONPARENT POSSESSORY
CONSERVATOR.
(a)  Unless limited by court order or other provisions of this chapter, a nonparent appointed as a possessory conservator has the following rights and duties during the period of possession:
(1)  the duty of care, control, protection, and reasonable discipline of the child;
(2)  the duty to provide the child with clothing, food, and shelter;  and  
(3)  the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate
danger to the health and safety of the child.
(b)  A nonparent possessory conservator has any other right
or duty specified in the order.

Question 2. Since the non parent possessory conservator (which is a nonparent or loco parentis) has specifically been noted in the court order as the grandparents as the parent possessory conservator, then do these two  parts of the Texas Family Code Statues allow us to file for support from the grandparents?

I just a cannot find a lot of information where Grandparents have been given full rights of a parent before.

§ 154.132.  APPLICATION OF GUIDELINES TO CHILDREN OF
CERTAIN DISABLED OBLIGORS.  In applying the child support
guidelines for an obligor who has a disability and who is required
to pay support for a child who receives benefits as a result of the
obligor's disability, the court shall apply the guidelines by
determining the amount of child support that would be ordered under
the child support guidelines and subtracting from that total the
amount of benefits or the value of the benefits paid to or for the
child as a result of the obligor's disability.

Question 3.  Also if the mother is on state disability insurance for mental illness and diabetes, why would the attorney general office of Texas not make her pay support from here benefits?


§ 153.433.  POSSESSION OF AND ACCESS TO GRANDCHILD.  The
court shall order reasonable access to a grandchild by a
grandparent if:

(2)  access is in the best interest of the child, and at
least one of the following facts is present:
         
(C)  the child has been abused or neglected by a parent of the child;      
         
(F)  the child has resided with the grandparent requesting access to the child for at least six months within the 24-month period preceding the filing of the petition

The child was abused by the mother.  The mother gave the child cocaine and received a 4 year probated sentence on child endangerment.  

The child resided with the mother at the grandparents home in the last 24 months.

Question 4.  Do we have a good chance of getting supervised visitation for the mother, even though the grandparents have been sneaking around letting her see the child, as she still lives with them?

Question 5. The grandparents are trying to say the child lived with them and they raised her, BUT the mother lived there also.  So our answer is she lived with her mother at the grandparents.  Is there a difference?

Sorry this is so long, just trying to get some facts straight.  Can't seem to find any precedent to this case.

[socrateaser]

>Question 1.  Since the Court Order has given the grandparents
>the status of parent temporary possessory, will this show they
>are standing in as the mother/parent?

Yes.

>
>Question 2. Since the non parent possessory conservator (which
>is a nonparent or loco parentis) has specifically been noted
>in the court order as the grandparents as the parent
>possessory conservator, then do these two  parts of the Texas
>Family Code Statues allow us to file for support from the
>grandparents?

Well, 154.001 allows the court to order support from either or both "parents." It says nothing about grandparents, so I think you would lose the argument here.

And, 153.376 requires the nonparent possessory conservator to provide food, shelter and clothing, but, here again, it doesn't say that this person must pay support to the other possessory parent. You could argue that because the statute requires the conservator adhere to the identical obligations of a parent, that this should extend to the obligation of support, but you'll need an attorney to fight this fight, cause it would require the court to acknowledge a sweeping expansion of granparent duty, and that would be quite an argument with loads of legal briefs, and probably an appeal to the TX Supreme Court.

>Question 3.  Also if the mother is on state disability
>insurance for mental illness and diabetes, why would the
>attorney general office of Texas not make her pay support from
>here benefits?

You are misreading 154.132. It is only applicable to a parent who owes support to a child, said CHILD who receives benefits as the result of the parent's disability. Under your facts, the mother receives the benefits, not the child. So, this is N/A.

>Question 4.  Do we have a good chance of getting supervised
>visitation for the mother, even though the grandparents have
>been sneaking around letting her see the child, as she still
>lives with them?

You probably can get supervised visitation, but good luck enforcing it -- as you say, the grandparents will thwart the court order and you won't be able to prove it (at least not easily).

>
>Question 5. The grandparents are trying to say the child lived
>with them and they raised her, BUT the mother lived there
>also.  So our answer is she lived with her mother at the
>grandparents.  Is there a difference?

The only issue here is whether the parents are enabling the mother to avoid becoming employed. If you can prove that the mother is capable of earning a living, but is being shielded by her parents, then her income could be imputed based on her failure to seek employment and then you could get her disability benefits.