Defeat 'in loco parentis' bil

A Utah Supreme Court decision last week, in a case that has had some state lawmakers in fits, demonstrates convincingly that the system has done its job well. Lawmakers should now let SB248, a bill intended to use a cookie-cutter approach to a matter that differs from case to case, die quietly.

The court ruled that the former lesbian partner of a mother should not have visitation rights to that mother's child under a doctrine known as "in loco parentis," which is Latin for "in the place of a parent." A lower court had granted those visitation rights.

The judicial system may not act as quickly as many people like. It also does not always render decisions that are popular. In cases like this, however, it is the one branch of government best equipped to deal with the case-by-case circumstances of parental custody that deserve special attention. State laws tend to be inflexible to circumstances. They can create unintended victims.

A year ago, Gov. Jon Huntsman Jr. wisely vetoed a bill that would have removed the judicial system's power to decide whether to invoke in loco parentis. Unfortunately, this year's version, sponsored by Sen. Curtis Bramble, R-Provo, is just as bad. It has been rewritten in subtle ways to protect some rights of grandparents and stepparents who are raising a child, but those protections don't go far enough, nor are they broad enough.

The bill would prohibit judges from using in loco parentis to grant visitation rights, custody or adoption unless specifically authorized by a statute. It would allow any biological or adoptive parent to regain custody of a child from a person standing "in loco parentis" unless a court finds "clear and convincing evidence" that the parent is unfit or that the change would harm the child.

Finding "clear and convincing evidence" can be a difficult hurdle, indeed.

For one reason or another, many Utah children are being raised by people who are not their biological or adoptive parents. Sometimes, these situations arise when a parent divorces, remarries and then dies. The child may have had little contact with his or her biological parent, who has been estranged since the divorce and may consider the surviving spouse to be a parent.

Under the court's ruling, someone who is not a biological parent and whose relationship with the child has ended cannot use in loco parentis to seek visitation rights. We hope lawmakers see this as a final word on the subject.