In remanding the cause for a determination of the ex-stepfather's relationship with his former stepchildren, the Spells court indicated that a relevant factor in the determination would be whether the ex-stepfather had stood in loco parentis to his stepchildren. See, also, Simpson v. Simpson, 586 S.W.2d 33 (Ky. 1979) (adopting the in loco parentis approach in holding that visitation with a surrogate parent may be in the child's best interests). Utah used the same approach in Gribble v. Gribble, 583 P.2d 64 (Utah 1978).
The Burns' counsel conceded that the phrase, "or found," would not be coextensive with being physically present if the children had been brought to Rowan County without permission. Their attorney acknowledged that she participated in what would be the controlling case in such circumstances, Simpson v. Simpson, Ky., 586 S.W.2d 33 (1979), wherein we stated: "A nonparent cannot legitimately invoke the Court's jurisdiction on the issue of custody by seizing a child from a parent prior to filing a petition for custody."
" Looper v. McManus , Okla.App., 581 P.2d 487, 488 (1978).Simpson v. Simpson , 586 S.W.2d 33 (Ky. 1979) (abrogated by statute, as noted inB.F. v. T.D. , 194 S.W.3d 310 (Ky. 2006) ).According to the DNA petition filed by the paternal grandparents, their three-year-old grandson was living with his parents in a home rife with domestic violence and regular intravenous methamphetamine use.
Uniform Marriage and Divorce Act, Sec. 407, Commissioner's Note (1971)." Simpson v. Simpson, (Ky. 1979) 586 S.W.2d 33, 35 (construing Ky. Rev. Stat. § 403.320 (Supp. 1980)). The same result, that the statute does not necessarily exclude visitation rights of third parties, was reached in Collins v. Gilbreath (4th Dist. 1980) Ind. App., 403 N.E.2d 921.
A.2d 200, 205 (D.C.2005) (“[T]he status of in loco parentis arises only when one is willing to assume all the obligations and to receive all the benefits associated with one standing as a natural parent to a child.”) (citation and internal quotation marks omitted). A finding that one stood in loco parentis in this sense could, at one time at least, entitle one, for example, to a parent's tort immunity, Rutkowski, 143 N.Y.S.2d at 1; could give one an insurable interest in the child for life-insurance purposes, First Colony Life Insurance Company v. Sanford, 555 F.3d 177 (5th Cir.2009); could affect one's entitlement to bankruptcy allowances, In re Ramsay, 440 B.R. 85 (M.D.Penn.2010); could entitle the child to favorable inheritance tax treatment, Conner v. Parsley, 192 Ky. 827, 234 S.W. 972 (1921); could render one liable for the child's support and education, Dixon v. Hosick, 101 Ky. 231, 41 S.W. 282 (1897); and could give one standing to seek custody of or visitation with the child, Simpson v. Simpson, 586 S.W.2d 33 (Ky.1979) (abrogated by statute, as noted in B.F. v. T.D., 194 S.W.3d 310 (2006)). In loco parentis status could also render one liable for having failed to protect the child from injury, not only by a third person, People v. Stephens, 3 A.D.3d 57, 769 N.Y.S.2d 249 (2003) (upholding second-degree murder conviction of man who failed to seek medical aid for girlfriend's nine-year-old sister who was fatally injured while living with the couple), but also by the child's parent.
A finding that one stood in loco parentis in this sense could, at one time at least, entitle one, for example, to a parent's tort immunity, Rutkowski, 143 N.Y.S.2d at 1 ; could give one an insurable interest in the child for life-insurance purposes, First Colony Life Insurance Company v. Sanford, 555 F.3d 177 (5th Cir.2009) ; could affect one's entitlement to bankruptcy allowances, In re Ramsay, 440 B.R. 85 (M.D.Penn.2010) ; could entitle the child to favorable inheritance tax treatment, Conner v. Parsley, 192 Ky. 827, 234 S.W. 972 (1921) ; could render one liable for the child's support and education, Dixon v. Hosick, 101 Ky. 231, 41 S.W. 282 (1897) ; and could give one standing to seek custody of or visitation with the child, Simpson v. Simpson, 586 S.W.2d 33 (Ky.1979) (abrogated by statute, as noted in B.F. v. T.D., 194 S.W.3d 310 (2006) ).In loco parentis status could also render one liable for having failed to protect the child from injury, not only by a third person, People v. Stephens, 3 A.D.3d 57, 769 N.Y.S.2d 249 (2003) (upholding second-degree murder conviction of man who failed to seek medical aid for girlfriend's nine-year-old sister who was fatally injured while living with the couple), but also by the child's parent.
KRS 403.260(5) (repealed 1980).Simpson v. Simpson, 586 S.W.2d 33 (Ky. 1979).
" citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)); Sherfey v. Sherfey, Ky.App., 74 S.W.3d 777, 781-82 (2002); Greathouse v. Shreve, Ky., 891 S.W.2d 387 (1995). Cf. Simpson v. Simpson, Ky. 586 S.W.2d 33, 35 n. 1 (1979) ("A nonparent can not legitimately invoke the court's jurisdiction on the issue of custody by seizing a child from a parent prior to filing a petition for custody."). On the facts of this case, we conclude that the trial court clearly erred when it ruled that the Asentes lacked standing.
Carter v. Brodrick, 644 P.2d 850, 855 (Alaska 1982) (acknowledging that step-parents who stand inlocoparentis have ability to petition for visitation); Custodyof C.C.R.S., 892 P.2d 246, 247 (Colo. 1995) (holding that best interest test applies to determine custody between biological and psychological parents); Simpson v. Simpson, 586 S.W.2d 33, 35 (Ky. 1979) (recognizing that nonparent who stands inlocoparentis may petition for custody); E.N.O. v. L.M.M., 711 N.E.2d 886, 893-94 (Mass. 1999) (holding that trial court had jurisdiction to award visitation between child and defacto parent); In Matter ofJ.W.F., 799 P.2d 710, 714 (Utah 1990) ("[T]he fact that a person is not a child's natural or legal parent does not mean that he or she must stand as a total stranger to the child where custody is concerned.
It is appropriate to extend the application of that same rationale to the award of visitation to a nonparent. The awarding of visitation to a non-parent is not uncommon.See Wills v. Wills, 399 So.2d 1130 (Fla.App. 1981); Collins v. Gilbreath, 403 N.E.2d 921 (Ind. App. 1980); Simpson v. Simpson, 586 S.W.2d 33 (Ky. 1979). It is clear from the above-cited cases that the paramount concern in awarding visitation to a non-parent is the best interests of the child. See Annot., 1 A.L. R.4th 1270 (1980).