Montana Attorney General Opinion 15-467

Opinion No. 467. Parent and ,Child-Stepfather-Cus- tody of Children. Held: A stepfather of children whose mother is deceased, has, by reason of the relation merely, no right to the cus- tody of the children hut he may be en- titled to the custody if he stands in loco parentis to such children. A person standing in loco parentis to 11 child is entitled to the custody of snch child as against third persons. February 19, 1934. You have asked my opinion on the following facts: "A., the father of two children, died, his widow later marry- 324 OPINIONS OJ<' THE A'l'TOHNEY GENEHAL ing B., who provided support for the children but did not legally adopt them. The mother died and the question has arisen as to who has the right of cus- tody of the children, the stepfather or the mother's sister. Please advise us." Neither the stepfather nor the aunt of the children, merely by reason of such relationship, has the right to the legal custody of the children in the absence of adoption or guardianship proceedings. In State ex reI. Sheed~' v. District Court, 66 Mont. 427, 213 Pac. 802, where" the Court permitted the aunt to adopt children whose par. ents were deceased, upon petition for adoption being presented by her, it was held that since the statute did not re- quire that notice be given to the step- father, that no notice to him was re- quired. "'e are not advised of the facts from which it may be determined whether either, or some other person stands in loco parentis to these children. As- suming, howeyer, that the stepfather now has the children ill his custody, and has been supporting them in his family, I call your attention to the fol- lowing general principles of law: "A person standing in loco parentis to a child is one who has put himself in the situation of a lawful parent by assuming the obligations incident to the parental relation, without g:o- ing through the formalities necessary to a legal adoption, and the rights, duties. and liabilities of snch person are the same as those of the lawful parent, * * •. " (46 C. J. 1334, Sec. 174.) "A person standing in loco parentis is entitled to the custody of the child,. as against third persons, unless his conduct renders him unfit for such custody, * .. "." (Id. Sec. 175.) "A stepparent does not, merely by reason of the reI a tion, stand in loco parentis to the stepchild • * *, but a stepparent who voluntarily re- ceives the stepchild into the family and treats it as a member thereof stands in the place of the natural par- ent, and the reciprocal rights, duties and obligations of parent and child continue as long as such relation con- tinues." Od. Sec. 181.) In this connection see also Section 5846, Revised Codes of Montana, 11)21. "A stepparent has, by reason of thE' relation merely, no right to the cus- tody of his stepchildren, hut he mar be entitled to the custody if he stands in loco parentis to the children." (Id. Sec. 182.) (See also in re Flynn, 87 N. J. Eq., 413, 100 At!. 861.)