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Acting as parent to boy precluded DVPO order

 

A domestic violence protective order granted to a Chatham County woman against her ex-boyfriend’s 14-year-old son must be vacated because the woman had assumed the status and obligations of a parent, the North Carolina Court of Appeals has ruled, interpreting a part of the state’s domestic violence statutes that it had never before been asked to define.

The plaintiff, whom Lawyers Weekly is choosing not to name in this story, was living with and in a long-term relationship with the boy’s father from 2015 until 2019, when she filed for the DVPO based on threats the boy, who at that time was 14, had made against her and violent actions he’d taken.

Under state law, a parent can’t obtain an order of protection against a child under the age of 16, and that restriction includes people who were acting in loco parentis to the child. The term “in loco parentis” is not defined in the statute, but is generally defined as a person who has assumed the status and obligations of a parent without a formal adoption.

Judge Chris Brook, writing for a unanimous Court of Appeals panel in an Oct. 6 opinion, noted that the court had never interpreted the term in the context of the DVPO statute, but concluded that cases where the court had defined the term in other contexts—divorce, custody, and the state’s juvenile code—provided a suitable framework for interpreting the DVPO law.

In this case, Brook wrote, the findings and record couldn’t support the conclusion that Plaintiff had never formed an in loco parentis relationship with the boy, and so the court vacated the order and remanded the case.

“The findings by the trial court and the record do not support the conclusion that Plaintiff ‘was not ever able to act in loco parentis’ to Defendant. Plaintiff testified that she quit her job to take care of Defendant and his sister; her care for Defendant included cooking, cleaning, taking him to school, and making and taking him to doctors’ appointments—actions this Court has previously considered “obligations incidental to the parental relationship,” Brook wrote.

“In addition to providing support and maintenance for Defendant, Plaintiff manifested her ‘intent to assume parental status’ by, for instance, working with a therapist to set boundaries for Defendant. Her testimony that she considered herself to be parenting [the] children also undermines the trial court’s conclusion that she was never able to act in loco parentis to Defendant.”

Although the boy is now 16 and it was unclear from the record whether the DVPO was still in effect, Brook said that the dispute was nevertheless not moot because of the “stigma that is likely to attach to a person judicially determined to have committed domestic abuse.”

Edward Eldred of Carrboro represented the boy on appeal and Karen Murphy of Chapel Hill represented him at trial. The attorneys declined to comment on the ruling at this time, citing the ongoing nature of the case.

Legal Aid of North Carolina represented the plaintiff. Attorney Rachel Gessouroun said there was an ongoing, long-term threat to the plaintiff that included very specific threats to kill her, and the attorneys argued that this domestic violence was severe enough to preclude an in loco parentis relationship from developing, or at least terminating any relationship that might have once existed. The Court of Appeals, however, said the record lacked evidence to show how the violence created a change in circumstances or affected the plaintiff’s ability to provide support and maintenance for the boy.

“It seems that the court wants to see some more specific testimony on how the violence interrupted the provision of support and maintenance, if it was at one time being provided, and how the in loco parentis relationship was therefore different,” Gessouroun said.

The 13-page decision is Gibson v. Lopez (Lawyers Weekly No. 011-246-20). The full text of the opinion is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan


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