Foust v. Montez-Torres
456 S.W.3d 736
Ark.2015Background
- Foust (appellant) and Montez-Torres were partners; Foust lived with Montez-Torres and helped raise M.F. from birth (2006) until the couple separated in 2009.
- After separation, Montez-Torres moved out with M.F.; the parties agreed to periodic visitation but Montez-Torres later revoked visitation after incidents involving Foust’s romantic partners and boundary violations.
- Foust filed an independent complaint for custody or, alternatively, visitation on March 27, 2013.
- At the bench hearing, the circuit court found Foust stood in loco parentis for the first three years of M.F.’s life but concluded visitation was not in the child’s best interest and denied relief.
- On appeal, the majority affirmed, holding Foust lacked standing to seek visitation because she was not in loco parentis at the time she filed the action; concurring opinions raised statutory standing and best-interest analysis points.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Foust stood in loco parentis to M.F. for the child’s entire life | Foust: she assumed parental duties from birth and was treated as a parent, so in loco parentis status persisted | Montez-Torres: the relationship ended when she and the child moved out and Foust no longer lived with M.F. | Court: not clearly erroneous to find in loco parentis only for first three years; status terminated after separation and loss of co-residence |
| Whether Foust had standing to seek visitation/custody | Foust: previously acted as parent and thus may seek visitation | Montez-Torres: Foust lacked in loco parentis status when she filed suit, so she lacked standing | Court: Foust lacked standing because she was not in loco parentis at time of filing; affirm denial on that ground |
| Whether an independent statutory cause exists to file a stand-alone visitation petition (concurring view) | Foust: brought an independent visitation action | Montez-Torres: no statute authorizes independent visitation petitions outside divorce/paternity/guardianship | Concurrence: Arkansas statutes do not permit an independent visitation petition outside divorce, paternity, or guardianship proceedings (alternative basis for denying relief) |
Key Cases Cited
- Babb v. Matlock, 340 Ark. 263 (2000) (in loco parentis status is temporary and may be abrogated)
- Kempson v. Goss, 69 Ark. 451 (1901) (in loco parentis terminates when surrogate establishes a separate home)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental rights to direct child-rearing are fundamental liberty interests)
- Jones v. Barlow, 154 P.3d 808 (Utah 2007) (in loco parentis does not confer perpetual visitation rights after the parent ends the relationship)
- Coons-Andersen v. Andersen, 104 S.W.3d 630 (Tex. App. 2003) (nonparent lacks standing to pursue custody/visitation when no longer residing with child)