In loco parentis

An Alberta court has awarded custody of a nine year-old child to the biological father’s former same-sex partner:

In a precedent-setting case, a Calgary judge has granted custody of an eight-year-old girl to a gay man over his former partner and biological father of the child.

The two men had shared parenting duties of the girl for three years before they split in 2006.

However, Court of Queen’s Justice Suzanne Bensler ruled that the parental and guardian responsibilities will remain the same while R., the biological father of baby S., pursues parental rights under the Amended Act of the Family Law Act.


The judge said she accepted earlier findings of the court, by Justice Kristine Eidsvik, that both during the planning for conception and after the birth of the child S., there was an understanding that R. and H. would have the primary parenting responsibilities over S. and that D. would carry the baby for them in return for the opportunity to have and to raise baby N., also using assisted conception, along with her lesbian partner.

“It is contrary to the best interests of the child S. to be limited to the legal recognition of a sole parent, Ms. D.,” the judge wrote. “There is no other methods of correcting for this deprivation . . . I thus declare Mr. H. to be a legal parent of S.”

The judge said, though, R. has been granted a declaration of guardianship and has all the rights and responsibilities that accompany such status.


Bensler said even though the biological mother had not resided with the child for the first three years, she never did relinquish her parental or guardianship status and she and R. entered into a new parenting agreement which named each of them as guardians.

Following the separation of the two men, however, relations soured and became quite acrimonious and the two biological parents “denied any meaningful access” to H, claiming it was not in the best interests of the child.

The court, though, granted H. reasonable access pending trial or a further court order, and he began to exercise his access rights.

That further deteriorated the relationship between H. and R. and a parenting assessment was performed. Following that, an order in November 2007 discontinued contact between H. and S. and H.’s relationship with the child became virtually non-existent, said the judge.

H. then brought an application for access on the basis that he was a person standing in the place of a parent, or that he was a person who could be considered a parent in law.

Once you get past this case involving a same-sex couple – and the court’s finding that there are three individuals who have an interest in parenting this child – it seems like a relatively straightforward application of the in loco parentis principle.

In loco parentis literally means “in the place of a parent,” and it is applied in situations where a non-biological or non-adoptive parent has taken on a parenting role substantial enough that access or even custody is in the child’s best interests.  (That’s a double-edged sword: the in loco parentis parent may also have to pay child support.)

It doesn’t appear that the written decision is available online, but the biological parents’ denial of access to H. may have also been a factor.  When determining what is in the best interests of a child, the courts will consider the parties’ willingness to allow a relationship with the other parent.  Or, in this case, parents.

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