Friday, August 15, 2008

Step Parents Are Protected by Parental Immunity If They Stand In Loco Parentis to the Step Child

The state Supreme Court recently confirmed that a step-parent standing in loco parentis to a step-child is protected from a suit by the step child to the same extent as a legal parent.

In Zellmer v. Zellmer, docket No. 78852-9 (Wash. Sup. 7/24/08), the child’s biological parents sued the step father for a number of torts sounding in negligence on behalf of themselves and the child’s estate. The torts were based on the fact that the step child, who was three-years old, drowned in the step father’s pool while he was supposed to be supervising her.

According to the step father, the girl wandered outside the house, fell into the pool, and drowned, while he was building a fire in the living room. According to the biological parents, the girl would never have wandered outside on a cold December night in her pajamas, walked to the far corner of the property, and fallen in, without some kind of intentional misconduct by the step father.

The biological parents also asserted that the step father had purchased a $200,000 accidental life insurance policy in the child’s name and made himself the co-beneficiary, that he had assaulted the mother twice during their 88-day marriage, and that the mother did not allow him to supervise the child alone on a regular basis. One of the parent’s witnesses testified that the step father had called the child “a little bitch.”

The step father claimed he was immune from suit by the doctrine of parental immunity, which holds that children cannot sue their parents for negligent supervision unless the failure to supervise is wanton or willful. The courts created this doctrine and have subsequently modified it to protect the parent’s interest in raising their own children based on their own beliefs and methods.

The parents asked the court to reject the doctrine of parental immunity and replace it with the “reasonable parent” standard. Instead, the court remanded for an evidentiary hearing into whether the step father really stood in loco parentis to the child. In loco parentis means “in the place of the parent.” A step-parent standing in loco parentis has the same rights and responsibilities as the legal parent. The fact that the step parent is married to the parent does not automatically confer in loco parentis statis.

In this case, the child’s biological father appears to have been actively engaged in parenting, the weight of the evidence indicated that neither the step father nor the child had bonded, and there was conflicting evidence about whether the step father had made genuine financial and emotional commitments to the child.

My own personal guess is that the step father was not in loco parentis and therefore was not shielded by parental immunity.