Veto 'in loco parentis' bil

Deseret Morning News editorial
Published: Thursday, March 9, 2006 9:53 a.m. MST
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State lawmakers stepped into a quagmire of unintended consequences when they passed HB148, a bill meant to keep judges from awarding custody of a child to a nonbiological parent against a biological parent's wishes. What they have done is create a one-size-fits-all solution to what often are complex and challenging familial situations.

Gov. Jon Huntsman Jr. should veto this bill, which, like so many ill-conceived measures, was passed during the hectic last few moments of the legislative session. Even then, the Senate barely passed it.

Specifically, the bill concerns the time-honored legal doctrine of "in loco parentis" — Latin for "in the place of a parent." It prohibits judges from invoking this concept to award visitation, custody, legal-guardian status, child support or adoption without the express permission of a parent. The only exception would be if a court has determined the biological parent to be unfit.

The bill seems to be a response to a messy recent court battle in which a judge granted a woman visitation rights to the 4-year-old son of her former lesbian partner. But by trying to remedy that situation, the bill puts a lot of other situations at risk.

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Many Utah grandparents are raising grandchildren for one reason or another. Often, the biological parent has been neglectful in some way short of meeting the legal definition of being unfit. Sometimes, through divorce or untimely death, the person raising a child has no biological link to the child. And yet, the emotional link is strong. Rather than allowing a judge to sort out the best interests of a child, this bill would allow a neglectful parent to suddenly reappear and regain custody without any chance for appeal.

Often, such a thing would not be in the child's best interest. It would compound emotional pain and disrupt lives.

The bill displays a cynical mistrust of the judicial system. In its place, however, it establishes a blanket legislative approach that ignores individual circumstances. When families are shattered, solutions require personal and individual considerations, not impersonal directives from Capitol Hill.

Judges don't always make the right decisions. But then, neither do state lawmakers. When lawmakers try to correct what they perceive as a bad court decision with the sledgehammer of state law, it seldom makes for good public policy. HB148 is a good example of this.

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