Standing of Same-Sex Partner in Custody Action

C.G. v. J.H., 172 A.3d 43 (Pa. Super. 2017), allocatur granted Jan. 17, 2018, appeal docket 2 MAP 2018

C.G. brought an action seeking legal and partial physical custody of ten-year-old child who was born to J.H. in February 2006, during the parties’ same-sex relationship.

The court held that C.G. did not have standing as a parent of J.H. because same-sex marriage and second parent adoption were not recognized by the state of Florida at the time of the child’s birth. As a result, the trial court framed the controlling question as whether C.G. stood in loco parentis to the child.

To determine whether C.G. stood in loco parentis to the child, the court considered “whether the third party lived with the child and the natural parent in a family setting, irrespective of its traditional or nontraditional composition, and developed a relationship with the child as a result of the participation and acquiescence of the natural parent.”

The trial court noted the following facts:

[J.H.] was added to the deed to [C.G.]’s house, and a joint home equity line of credit was obtained by the parties to renovate the residence prior to the child’s birth. The parties agree that [J.H.] went through the insemination process during their relationship while the parties were living together. [J.H.] and child lived with [C.G.] in Florida for nearly six years of his life, and the child referred to [C.G.] as “Mama Cindy” and [J.H.] as “Mom.” The parties had a commitment ceremony, baby shower, [and christening, and C.G. was present for the child’s birth.]

Outside these basic facts [C.G.]’s testimony and [J.H.]’s testimony is often in direct conflict. … [C.G.] testified that she is a parent, acted like a parent, and was held out as a parent to others and to the child, while [J.H.] claims [C.G.] had no desire or intent to parent the child, and all interactions between [C.G.] and the child were merely incidental to [C.G.] and [J.H.]’s relationship.

Slip Op., at 4-5.

The trial court ultimately sustained mother’s preliminary objection to standing, finding C.G. did not have in loco parentis status based on the following facts, with issues of credibility resolved in favor of J.H.:

. . .  the parties “took no steps to formalize a co-parenting arrangement” and neither party suggested adoption when adoption by members of a same-sex couple became a legal option in Florida in 2010; C.G. “never agreed to have a child, but merely tolerated the idea of [J.H.] having a child”; although C.G. initially carried the child on her medical and dental insurance, she removed him from her policies after the parties separated; C.G. was not listed as a parent on school or medical documents and was not intended to be the child’s guardian if something happened to J.H.; C.G. acted as a babysitter (according to J.H., she sometimes refused to care for the child), and some witnesses characterized her interactions with the child “as playing, not parenting”; J.H. did not consult C.G. regarding educational or medical decisions, including preschool selection, doctor selection or appointments, child care, and the child’s activities; C.G. did not “assume the role of a decision-maker for the child” or make contributions amounting to that of a parent; while C.G. contributed financially to the household, she did not assume financial responsibility for the child; C.G.’s extended family members have not reached out to the child since the parties’ separation; “the evidence presented does not establish a parent/child relationship exists between the child and [C.G.],” and “the child does not cry for, request to see, or otherwise reach out for [C.G.]”; and “the parties’ conduct post-separation is consistent with the finding that [C.G.] was not a parent to the child.” Trial Ct. Op. at 5–10.

Slip Op., at 26-27.

C.G. appealed, arguing that although she is not the child’s biological mother, biology should not be the controlling factor in determining who is a parent under 23 Pa. C.S. § 5324(1) when the child was conceived during C.G. and J.H.’s relationship and C.G. lived with the child during the first five years of the child’s life.

The Superior Court held that the trial court did not err in determining C.G. was not a parent under the custody statute, explaining:

C.G. does not cite any statute or case law establishing that a former life partner who has no biological relationship to the child and has not adopted the child can be a “parent to the child” under 23 Pa.C.S. § 5324(1). Moreover, our case law has consistently treated same-sex life partners who have not adopted a child as third parties for purposes of custody matters.

Slip Op., at 13.

Moving on to the trial court’s determination that C.G. did not have in loco parentis status to bring the custody action, the Superior Court noted that it could not interfere with the trial court’s factual conclusions unless they were unreasonable in view of the factual findings. The court set forth the standard for a showing of in loco parentis as:

“the status of in loco parentis embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties.” T.B., 786 A.2d at 916–17. “Parental duties” include “meeting the physical, emotional and social needs of the child.” 23 Pa.C.S. § 5322. “[T]he showing necessary to establish in loco parentis status must in fact be flexible and dependent upon the particular facts of the case.” J.A.L., 682 A.2d at 1320.

Slip Op., at 24.

Applying this standard, the Superior Court concluded that the trial court appropriately considered evidence from both parties, and that the court acted within its discretion to resolve conflicting testimony about C.G.’s role in the child’s life in favor of J.H.  Therefore, because the trial court’s findings and conclusions were reasonable and based on the record, the Superior Court affirmed the trial court’s holding that C.G. lacked standing as a parent and in loco parentis.

In a concurring opinion, Judge Musmanno questioned whether the standard applied to determine standing where a child is born during a same-sex relationship should be revisited, opining:

I question whether treating C.G. as a “third party” is appropriate where, as here, the parties lived together following a commitment ceremony; Child was conceived during the parties’ relationship; and the parties subsequently lived together with Child for over five years.

Slip Op., at 1-2 (Musmanno, J.).

The Supreme Court granted allocatur to determine:

Whether the Superior Court erred in affirming the decision of the trial court that a former same-sex partner lacked standing both 1) as a parent and 2) as a party who stood in loco parentis to seek custody of the child born during her relationship with the birth mother where the child was conceived via assisted reproduction with an anonymous sperm donor and the parties lived together as a family unit for the first five years of the child’s life?

For more information, contact Kevin McKeon or Dennis Whitaker.