Bethany v. Jones

2011 Ark. 67, 378 S.W.3d 731



"In loco parentis" is defined as in place of a parent; instead of a parent; charged factitiously with a parent's rights, duties, and responsibilities. Grandparents who stood in loco parentis have been treated differently from grandparents who did not. Grandparents have standing to intervene in adoption proceedings involving their grandchildren when they stand in loco parentis to their grandchildren. A court may award visitation to a stepparent who stands in loco parentis to a minor child when it determines that it is in the best interest of the child. The doctrine of in loco parentis focuses on the relationship between the child and the person asserting that they stood in loco parentis. The focus should be on what, if any, bond has formed between the child and the nonparent.


Bethany and Jones were same-sex partners from 2000 until 2008. In 2003, the parties purchased a home together, with both of their names listed on the mortgage. Then, in 2004, the parties began to take steps toward having a family. A male friend of Jones's agreed to donate sperm. Bethany agreed to carry the child because Jones was experiencing some health issues, including reproductive problems. Through the process of artificial insemination, Bethany became pregnant, and E.B. was born in 2005. The couple chose to give the child Jones's last name and Jones's grandmother's name as the child's middle name. The testimony at trial revealed that Bethany and Jones intended to co-parent the child. In fact, Bethany testified that at the time of conception, she considered Jones to be E.B.'s parent. After E.B.'s birth, the parties agreed that Jones would remain at home as the child's primary caregiver with Bethany returning to work on a full-time basis. In 2008, the parties ended their romantic relationship, but at that time agreed to continue co-parenting E.B. However, the situation between Bethany and Jones began to deteriorate. They had a disagreement over Jones keeping E.B. for a twenty-four-hour period, against Bethany's wishes. Bethany, who had entered into a relationship with another woman, decided that it was no longer in E.B.'s best interest to have contact with Jones because she questioned Jones's ability to parent, citing such factors as instability, depression, safety of the child, and truthfulness of Jones. After Bethany denied Jones visitation with E.B., Jones filed an action for custody alleging breach of contract based upon equitable estoppel. Bethany sought to have the complaint dismissed, arguing that Jones lacked standing to bring the suit, as there was nothing in Arkansas law that allowed her to seek visitation with E.B. Alternatively, she sought to have the case transferred to Garland County, claiming that the child resided in Hot Springs, Arkansas. At the conclusion of the trial, the circuit court ruled from the bench that Jones had sustained her burden of proof to establish a relationship with E.B. based on the doctrine of in loco parentis. Thus, the court announced that it was going to allow Jones to have visitation. The circuit court further stated that it was in E.B.'s best interests to have a relationship with both women and their families.


Did the circuit court err in its decision to grant visitation rights to Jones?




The Supreme Court affirmed the circuit court's order that, in part, granted the partner visitation under a theory of in loco parentis or equitable estoppel. Considering the ample evidence about the relationship between the partner and the child, the circuit court did not clearly err in finding that she stood in loco parentis to the child. It was undisputed that she was the stay-at-home mom for over three years who took care of the child and the child called her mommy. The child thought of the partner's parents as her grandparents and spent holidays with the partner's family. The parties' intentions were always to co-parent, until the mother unilaterally determined that she no longer wanted the partner to have visitation. Taking all of that into consideration, the circuit court correctly determined that the partner was a parent figure to the child.

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