Bottom line, you as a caretaker gotta PROVE you’re acting as the parents would. It’s always best to get the parents “orders” on ‘how ‘ they prefer discipline be handled.
Ever hear of the Babysitters act? in ‘loco parentis’
IN LOCO PARENTIS: DEFINITION, APPLICATION, AND IMPLICATION
In loco parenti’s connotes a relation with which few, if any, persons have not had some contact; yet these words are foreign to the vocabulary of many. In loco parentis has been defined as follows: “In the place of a parent; instead of a parent, charged factitiously with a parent’s rights, duties, and responsibilities.”1 Whether the relation, in loco parentis, exists depends on the facts of each individual situation.2 If such a relation exists, the rights, duties, and liabilities of the person standing “in the place of a parent” are the same as those of a lawful parent. The assumption of the relation is a question of intention and not of chance. Once established, the relationship is presumed to to continue, and the one claiming discontinuance has the burden of so proving.
In the New Mexico case of Criego v. Hogan4 the court stated that the relation of in loco parentis exists [w]hen a person undertakes the care and control of another in the absence of such supervision by the latter’s natural parents and in the absence of formal legal approval. It is temporary in character and not likened to an adoption, which is permanent. If the relationship is established, what are the rights of the parties enjoying the privilege of such relationship? It is generally found that one standing in loco parentis to a child enjoys the custody of the child,7 and necessarily acquires such power of control over the person of the child as is necessary to maintain the family entity adequately.” In addition to the benefits received by a person in loco parentis, certain obligations are also assumed. These obligations include requiring that the person in loco parentis care for and educate the child,9 be liable for necessaries furnished to the child,1″ and not be allowed, while such relation exists, to assert a claim for such support.” Reference having been made to the basic principles underlying the relation of in loco parentis, the intention of this note is: (1) to present several of the areas in which the privilege is found, (2) to examine the law as it has developed in each area to date, and (3) to attempt to determine the extent to which the privilege extends. By such analysis guidelines will be presented that will aid the practitioner when confronted by a case in which the relation, in loco parentis, possibly exists.
I. Liability for discipline
The first area to be discussed, and the one where problems are most likely to arise in society today, concerns the necessity of a person in loco parentis having the authority to discipline the persons in his charge.12 Prosser recognizes the need for such privilege and the resulting protection afforded one in the exercise of it.13 The general rule concerning the authority of a person in loco parentis with regard to discipline is that reasonable force for the correction or punishment of a child may be used by a parent or a person standing in the place of a parent.
14 The first question to be asked is whether or not the person claiming the protection of the rule is in fact in loco parentis and therefore entitled to such protection. As stated earlier, the existence of the rule depends on the facts of the individual case.’0 If the person claiming protection is found to be in loco parentis, it then becomes a question of whether his act was privileged by the rule. There are two views prevalent in the United States today.16 The majority view considers the reasonableness of the defendant’s act and determines whether such act was willful, wrongful, or unlawful.’ 7 The minority view perhaps affords greater protection to the defendant. Under this position, the defendant is within the protection of the privilege unless the act resulted in permanent injury to the child or was inflicted with malice.’
It should be noted at this point that punishment for an improper purpose, or punishment that is itself improper, will not fall within the protection of the rule.’0 Courts purporting to follow the majority view find that a person in loco parentis, when inflicting punishment, must not exceed the bounds of moderation and reasonableness and that any act found to be cruel, merciless, unreasonable, or immoderate exceeds the privilege and will subject the actor to liability.20, The following conditions have been stated to be pertinent:21 1. The actor’s relationship to the child; 2. the age of the child; 3. the child’s sex; 4. the child’s physical and mental condition; 5. the nature of the offense and apparent motive; 6. whether the punishment or confinement is reasonably necessary and appropriate; 7. whether the punishment is disproportionate to the offense; 8. whether the punishment is necessarily degrading; 9. whether the punishment is likely to cause permanent injury or serious harm; 10. whether the punishment was inflicted for a salutary purpose; 11. whether the actors were free from malice; 12. the childs example on other children; 13. the kind of instrument used; 14. the extent or nature of the use of the instrument; 15. the sensitivity of the child; 16. the child’s responsibilities; 17. the child’s tolerance to pain; 18. whether the child was old enough to underIt stand the punishment. 22 appears that the majority of jurisdictions also recognizes that the reasonableness of the punishment shall be determined by the jury or by the court as finder of fact according to the requirements applicable to the particular offense with which the defendant is charged.23 The position taken by the minority of states with regard to liability for punishment inflicted on a child by one in loco parentis requires that the punishment result in permanent injury or was inflicted with malice, either express or implied.
24 This standard affords greater protection to the defendant in that he will not be liable for an error in judgment as to the necessity for punishment or because it might appear that the punishment was not proportionate to the offense.25 In jurisdictions following this view the criminal liability of one in loco parentis depends, as a general rule, upon the establishment of the constituent elements of the particular crime charged.
The relation between a teacher and his pupil is one in loco parentis .27 This relation has been said to have been delegated by the parent, by sending his child to school, to the teacher.
28 This justification is tenuous, however, because state compulsory eduction laws require children to go to school.29 Rather, a more logical reason for allowing the teacher to stand in loco parentis to the students, thereby resulting in the privilege to discipline the students, stems from the necessity of maintaining order at the school.
scholarcommons.sc.edu/cgi/viewcontent.cgi?article=2165&context=sclr
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