B-57275, SEPTEMBER 13, 1946, 26 COMP. GEN. 190

B-57275, SEPTEMBER 13, 1946, 26 COMP. GEN. 190

RENTAL AND SUBSISTENCE ALLOWANCES - DEPENDENTS - IN LOCO PARENTIS STATUS IN ORDER THAT THE GENERAL ACCOUNTING OFFICE MAY HAVE SUFFICIENT INFORMATION UPON WHICH TO BASE A DETERMINATION THAT A PERSON HAS STOOD IN LOCO PARENTIS TO AN OFFICER CLAIMING INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENTS (PERSON IN LOCO PARENTIS) UNDER SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, THERE SHOULD BE SUBMITTED IN SUPPORT OF SUCH A CLAIM A DETAILED EXPLANATORY AFFIDAVIT RELATING THE INFORMATION SET FORTH IN THIS DECISION WITH RESPECT TO THE ALLEGED IN LOCO PARENTIS STATUS. AN AFFIDAVIT SUBMITTED BY A NAVY OFFICER IN SUPPORT OF HIS CLAIM FOR INCREASED RENTAL AND SUBSISTENCE ALLOWANCES ON ACCOUNT OF DEPENDENTS (GRANDMOTHER IN LOCO PARENTIS) WHICH MERELY ALLEGES THE GRANDMOTHER'S APPOINTMENT AS LEGAL GUARDIAN AND WHICH IS NOT IN SUFFICIENT DETAIL TO PERMIT A DETERMINATION THAT THE GRANDMOTHER STOOD IN LOCO PARENTIS TO HIM WITHIN THE MEANING OF SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, AS AMENDED, MAY NOT BE REGARDED AS ESTABLISHING THE OFFICER'S RIGHT TO INCREASED ALLOWANCES ON HER ACCOUNT.

ASSISTANT COMPTROLLER GENERAL YATES TO ENS. D. C. FRENCH, U.S. NAVAL RESERVE, SEPTEMBER 13, 946:

REFERENCE IS MADE TO YOUR LETTERS DATED JUNE 11 AND AUGUST 1, 1946, REGARDING THE ENTITLEMENT OF WILLIAM S. SPOTSWOOD, ENSIGN, (D) L, U.S.N.R., TO INCREASED ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (GRANDMOTHER IN LOCO PARENTIS) FOR THE PERIOD COMMENCING FEBRUARY 20, 1946.

THE ACT OF NOVEMBER 24, 1945, PUBLIC LAW 230, 59 STAT. 587, EFFECTIVE DECEMBER 1, 1945, AMENDED SECTION 4 OF THE PAY READJUSTMENT ACT OF 1942, 56 STAT. 361, BY ADDING THERETO THE FOLLOWING PARAGRAPH:

AS USED IN THIS SECTION, THE TERMS "FATHER," "MOTHER," "PARENT," AND "PARENTS" SHALL INCLUDE A STEPPARENT, A PARENT BY ADOPTION, AND ANY PERSON, INCLUDING A FORMER STEPPARENT, WHO HAS STOOD IN LOCO PARENTIS TO THE PERSON CONCERNED AT ANY TIME FOR A CONTINUOUS PERIOD OF NOT LESS THAN FIVE YEARS: PROVIDED, THAT A STEPPARENT-STEPCHILD RELATIONSHIP SHALL BE DEEMED TO BE TERMINATED BY THE STEPPARENT'S DIVORCE FROM THE BLOOD PARENT.

ORDINARILY, THE STATUS IN LOCO PARENTIS HAS REFERENCE TO ONE WHO TAKES A CHILD INTO HIS HOME AND TREATS IT AS A MEMBER OF HIS OWN FAMILY, EDUCATING AND SUPPORTING IT AS IF IT WERE HIS OWN CHILD. SEE 39 AM. JUR. 697, SECTION 61, AND CASES CITED THEREIN. TO LIKE EFFECT IS 5 COMP. GEN. 876, WHEREIN IT IS STATED FURTHER---

* * * OR IT MIGHT BE EXPRESSED AS ONE WHO MEANS TO PUT HIMSELF OR HERSELF IN THE SITUATION OF LAWFUL PARENT TO THE CHILD WITH REFERENCE TO THE OFFICE AND DUTY OF MAKING PROVISION FOR THE CHILD.

REGULATIONS HAVE BEEN ISSUED PRESCRIBING THE PROCEDURE TO BE FOLLOWED BY DISBURSING OFFICERS OF THE NAVY WITH RESPECT TO CLAIMS FOR INCREASED ALLOWANCES ON ACCOUNT OF DEPENDENTS OF THE SEVERAL CLASSES NAMED IN THE SAID ACT OF NOVEMBER 24, 1945, AND SETTING FORTH THE EVIDENCE WHICH MUST ACCOMPANY REQUESTS TO THIS OFFICE FOR ADVANCE DECISION IN SUCH CASES, INCLUDING, IN THE CASE OF CLAIMS INVOLVING THE STATUS OF IN LOCO PARENTIS,"A DETAILED EXPLANATORY AFFIDAVIT RELATIVE TO THE ,IN LOCO PARENTIS" STATUS.' SEE BUREAU OF SUPPLIES AND ACCOUNTS MANUAL, ARTICLE 2142-3 (E) (5).

WHILE THE NATURE OF THE INFORMATION TO BE FURNISHED IN THE DETAILED EXPLANATORY AFFIDAVIT WAS NOT SPECIFIED IN THE REGULATIONS, SUCH AFFIDAVIT SHOULD INCLUDE, BUT NEED NOT BE CONFINED TO, A SHOWING IN REGARD TO THE FOLLOWING MATTERS:

(1) THE DATE OF BIRTH OF THE CLAIMANT; THE DATE WHEN THE ALLEGED IN LOCO PARENTIS RELATION COMMENCED; HOW LONG THAT RELATION CONTINUED; THE WHEREABOUTS OF THE NATURAL PARENTS DURING SAID PERIOD; AND WHETHER DURING ALL OF SAID PERIOD THE CLAIMANT LIVED WITH THE PERSON ALLEGED TO HAVE STOOD IN LOCO PARENTIS, SHOWING THE PERIOD OF ANY MAJOR ABSENCES AND THE REASONS THEREFOR, INCLUDING THE DATE OF THE CLAIMANT'S ENTRY INTO THE MILITARY OR NAVAL SERVICE.

(2) THE CIRCUMSTANCES UNDER WHICH THE RELATION AROSE, INCLUDING A STATEMENT SHOWING BY WHOM THE CLAIMANT WAS PLACED IN THE CUSTODY OF THE PERSON ALLEGED TO HAVE STOOD IN LOCO PARENTIS, AND THE UNDERSTANDING OR AGREEMENT, IF ANY, WHICH WAS ENTERED INTO IN THE MATTER, FURNISHING A COPY OF THE UNDERSTANDING OR AGREEMENT IF SAME WAS REDUCED TO WRITING.

(3) WHETHER THE PERSON ALLEGED TO HAVE STOOD IN LOCO PARENTIS ASSUMED THE DUTY OF AND PAID OUT OF HIS PERSONAL FUNDS FOR THE SUPPORT, EDUCATION, ETC., OF THE CLAIMANT; THE PERIOD OF SUCH UPPORT; AND WHETHER ANY OTHER PERSON OR PERSONS AIDED MATERIALLY--- THAT IS, BEYOND OCCASIONAL GIFTS, ETC.--- IN SUCH SUPPORT, DETAILING THE EXTENT OF SUCH AID, IF ANY.

WITH YOUR LETTER OF JUNE 11, 1946, THERE WAS SUBMITTED IN ADDITION TO THE OFFICER'S VOUCHER, S. AND A. FORM 531, AND HIS CERTIFICATE OF DEPENDENCY DATED APRIL 1, 1946, AN AFFIDAVIT OF THE OFFICER--- APPARENTLY INTENDED AS THE EXPLANATORY AFFIDAVIT REQUIRED BY THE CITED REGULATIONS--- AS FOLLOWS:

BY THESE PRESENTS, I, WILLIAM SYSON SPOTSWOOD, ENSIGN, UNITED STATES NAVAL RESERVE, DO CERTIFY.

THAT BESSIE FEARN SYSON (THE GRANDMOTHER ON WHOSE ACCOUNT THE ALLOWANCES ARE CLAIMED), WHOSE ADDRESS IS 214 UPHAM STREET, MOBILE, ALABAMA, HAS BEEN MY SOLE GUARDIAN SINCE THE YEAR 1933; THAT SHE WAS LAWFULLY APPOINTED MY LEGAL GUARDIAN BY THE STATE OF ALABAMA IN SAID YEAR; AND THAT AT THIS WRITING THE AFORESAID BESSIE FEARN SYSON REMAINS MY SOLE LAWFULLY APPOINTED LEGAL GUARDIAN.

HOWEVER, THE MERE APPOINTMENT OF A GUARDIAN FOR A MINOR DOES NOT OF ITSELF RELIEVE PARENTS AND CHILDREN OF THEIR NATURAL OBLIGATIONS TO EACH OTHER. LESSARD V. GREAT FALLS WOOLEN CO., 83 N.H. 576, 145 A. 782, 63 A.L.R. 1142; AND ANNOTATION IN 63 A.L.R. 1147. WHILE, ORDINARILY, A GUARDIAN STANDS IN LOCO PARENTIS TO THE WARD, HIS RIGHTS AND DUTIES ARE THOSE DEFINED IN THE PERTINENT STATUTES AND ARE SUBJECT TO THE PROVISIONS AND PURPOSES OF THE APPOINTMENT AS WELL AS TO THE RIGHTS AND DUTIES OF THE NATURAL PARENTS. 25 AM. JUR. 40, 41 AND 42, SECTIONS 60 TO 63, INCLUSIVE. AND, UNLIKE THE GENERAL RULE WITH REGARD TO NATURAL PARENTS AND THEIR CHILDREN, THE GUARDIAN, USUALLY, MAY CHARGE THE WARD'S ACCOUNT WITH THE COST OF HIS SUPPORT AND EDUCATION. 25 AM. JUR. 45, SECTION 69, AND CASES CITED THEREIN.

ACCORDINGLY, THE MERE APPOINTMENT OF A GUARDIAN MAY NOT OF ITSELF BE CONSIDERED AS ESTABLISHING THE IN LOCO PARENTIS STATUS REQUIRED BY THE STATUE HERE INVOLVED, AND, SINCE THE OFFICER'S PRESENT AFFIDAVIT IS NOT SUFFICIENTLY DETAILED TO PERMIT A DETERMINATION THAT HIS GRANDMOTHER STOOD IN LOCO PARENTIS TO HIM WITHIN THE MEANING OF SAID STATUTE, IT MAY NOT BE CONCLUDED THAT HE HAS A DEPENDENT FOR INCREASED ALLOWANCE PURPOSES, AND, THEREFORE, YOU/ARE NOT AUTHORIZED TO CREDIT HIM WITH SUCH ALLOWANCES ON THE BASIS OF THE PRESENT RECORD. SHOULD FURTHER CONSIDERATION OF THE MATTER BE DESIRED, THERE SHOULD BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE A NEW AFFIDAVIT, EXECUTED BY THE OFFICER, SHOWING IN THE DETAIL HEREINBEFORE SET FORTH, THE FACTS WITH REGARD TO THE ALLEGED IN LOCO PARENTIS STATUS OF HIS GRANDMOTHER.