Child Support Obligations of Third Parties standing In Loco Parentis
Caldwell v. Jaurigue, 2022 WL 5073906 (Pa. Super.) (unreported), allocatur granted March 21, 2023, appeal docket 30 MAP 2023
This case arises from a complaint filed by Joseph S. Caldwell, Jr. (“Father”) seeking child support for ten-year-old L.C. (“Child”) from Philip Jaurigue, the Child’s mother’s significant other. After Child’s mother died, Jaurigue sought partial physical custody of Child. The trial court found that while Jaurigue was not Child’s stepparent as, Jaurigue stood in loco parentis to Child to maintain the action and granted Jaurigue’s request for visitation rights. Father then filed a complaint seeking child support payments from Jaurigue.
The trial court denied Father’s request for child support, reasoning that Jaurigue’s relationship with the Child did not include the duty to financially support Child even where Jaurigue was found to stand in loco parentis to Child. In its Pa. R.A.P. 1925 opinion, the trial court “noted that the mere fact that a stepparent stood in loco parentis to a child, or made efforts to maintain a post-separation relationship with the child to whom they stood in loco parentis, was not sufficient to impose an obligation to pay support” under the Pennsylvania Supreme Court’s decision in A.S. v. I.S., 130 A.3d 763 (Pa. 2015). The trial court, noting that Jaurigue only requested partial physical custody and not legal custody of Child, reasoned:
It is clear to the Court that [ ] Jaurigue previously assumed a parental status over [Child] and filed a Complaint in Custody to seek visitation rights in order to maintain a relationship with [Child] after the death of Mother. [Under] appellate case law in Pennsylvania, [ ] Jaurigue’s ‘past and continued love and devotion’ to [Child] does not carry with it a duty to financially support [Child]. [See] Commonwealth ex rel. McNutt v. McNutt, [496 A.2d 816, 817 (Pa. Super. 1985) (stating that a stepparent’s past and continued devotion to his former stepchild alone does not invoke a duty of support)].
[…]
If we were to hold that a stepparent acting in loco parentis would be held liable for support even after the dissolution of the marriage then all persons who gratuitously assume parental duties for a time could be held legally responsible for a child’s support…. These acts of generosity should not be discouraged by creating a law which would require anyone who begins such a relationship to continue financial support until the child is eighteen years old.
McNutt, 496 A.2d at 817.
Slip op. at 5-6 (quoting Pa. R.A.P. 1925 op.). Father appealed to Superior Court, arguing that Jaurigue’s effort and assumption of parental duties for Child were sufficient to impose a child support obligation under A.S. Jaurigue countered that A.S. is distinguishable because Jaurigue merely sought partial physical custody of the Child to maintain his relationship with her, and did not seek legal custody rights.
Superior Court reversed the trial court’s decision, holding that Jaurigue “proactively sought and assumed a level of legally-protected parental rights so as to invoke an obligation to support Child” under the reasoning set forth A.S. Superior Court summarized the background and reasoning of A.S. as follows:
… as the trial court correctly observed, in loco parentis status alone does not make a stepparent liable to financially support his stepchildren. See A.S., 130 A.3d at 766, 770. A.S. also specifically reiterated that a former stepparent’s “reasonable acts to maintain a post-separation relationship with stepchildren are insufficient to obligate a stepparent to pay child support for those children.” Id. at 770. So, for example, the former stepparent in McNutt was not liable for support when he “maintained a relationship with his stepchild, [but] neither sought nor was awarded any court-ordered custodial rights.” A.S., 130 A.3d at 768 (citation omitted). Likewise, the former stepparent in Drawbaugh v. Drawbaugh, 647 A.2d 240 (Pa. Super. 1994), was also not obligated to financially support his former stepchildren even though he had filed a petition for minimal visitation with them. See A.S., 130 A.3d at 770.
Critically, however, A.S. went on to recognize that there are some situations, such as the one in A.S., where a former stepparent affirmatively takes sufficient legal steps to act as a parent so as to trigger an obligation to pay support. There, a former stepfather to twins filed a complaint in custody for the twins after he and the twins’ mother separated and the mother planned to relocate with the twins. The trial court found that the stepfather stood in loco parentis to the twins and eventually granted him shared physical and legal custody of the twins. The court also prohibited either party from relocating with the twins without permission from the other party and the court.
The twins’ mother filed a support complaint against the stepfather, but the trial court dismissed the complaint. This Court affirmed, agreeing with the trial court that the former stepfather had no duty to provide financial support to the twins.
Our Supreme Court reversed. While the A.S. Court acknowledged the general rule that a former stepparent’s efforts to maintain a relationship with their former stepchildren did not make the stepparent liable to support them, the Court stated:
[T]he instant case involves a far greater assumption, indeed a relentless pursuit, of parental duties than that of a stepparent desiring a continuing relationship with a former spouse’s children … Here, we have a stepfather who haled a fit parent into court, repeatedly litigating to achieve the same legal and physical custodial rights as would naturally accrue to any biological parent. This is not the ‘typical case’ of a stepparent who has grown to love his stepchildren and wants to maintain a post-separation relationship with them.
Id. at 770.
Accordingly, the A.S. Court found that the stepfather owed a duty to support the twins because of the proactive legal steps he had taken to act as their parent. In doing so, the Court announced the general holding that “when a stepparent takes affirmative legal steps to assume the same parental rights as a biological parent, the stepparent likewise assumes parental obligations, such as the payment of child support.” Id. at 765.
Slip op. at 7-9. While Superior Court acknowledged that “the facts and circumstances here are less clear cut than those in A.S.,” the court emphasized “the range and extent of custodial rights [Jaurigue] sought and obtained after taking the initiative to file a custody complaint against Father”:
The amount of time allotted to Jaurigue by the physical custody schedule is extensive. According to Father, Jaurigue’s custodial time amounts to a total of 106 days, or 29%, of the year. See Appellant’s Brief at 10. Jaurigue contends Father’s assertions of his custodial time are grossly overstated, and in reality, his custodial time only amounts to 10% of the year. See Appellee’s Brief at 10. He also maintains that the only time measurement that is relevant for support purposes is the number of overnights he has with Child, of which he only has 19 per year. See id. at 9-10.
Regardless of the exact amount of custodial time that Jaurigue has been awarded, it is clear that the custody schedule allows Jaurigue to have regular, consistent, and significant amounts of custody time with Child. That time includes not only weekly after-school and dinner time, but regular Saturday visits and overnight stays, as well as vacation time that allows for air travel. It is time that could hardly be classified as minimal visitation, compare Drawbaugh, 647 A.2d at 240, 243, and time which Father may not deny Jaurigue, as it is legally mandated by the custody order Jaurigue actively pursued.
The custody order, however, does more than award substantial physical custody time to Jaurigue. It also allows him to spend time with Child beyond his physical custody days. Jaurigue is allowed daily Facetime/phone calls on his non-custodial days, along with daily texts. Father must notify Jaurigue of, and allow him to participate in, a long but not exhaustive list of Child’s school and extracurricular activities. Notably, Father must name Jaurigue as a family member if that status is required for attendance or access to online information regarding those activities. He must also inform Jaurigue of, and allow him to participate in, any therapy or tutoring sessions in which Child engages. And should Father wish to relocate with Child, he must notify Jaurigue and give him the opportunity to object to, and potentially prevent, that relocation pursuant to 23 Pa.C.S.A. § 5337(c) and (d).
Slip op. at 10-11. Thus, Superior Court concluded:
Here, Jaurigue did not gratuitously accept the burdens of custody but instead filed a complaint seeking custody of Child. And he did so against a fit biological parent. This support dispute does not involve grandparents, or even two third parties. Instead, it involves a person akin to a stepparent proactively filing a custody complaint with the intent to usurp the parental rights of Child’s biological father.
This is not to say that Jaurigue’s actions were not done out of love and concern for Child. The record reflects otherwise. However, the record also shows that Jaurigue’s actions amounted to more than a stepparent seeking to maintain a relationship with a stepchild he has grown to love. They were affirmative actions intended to legally gain substantial parental rights to Child.
Moreover, holding Jaurigue liable to support Child in light of the affirmative actions he took to assume parental duties for Child does not dismantle the policy considerations articulated in McNutt but rather, advances those set forth in A.S. As explained by A.S.:
We emphasize that we are not creating a new class of stepparent obligors and our decision today comports with the line of cases that have held that in loco parentis standing alone is insufficient to hold a stepparent liable for support. The public policy behind encouraging stepparents to love and care for their stepchildren remains just as relevant and important today as it was when Drawbaugh [quoting McNutt] was decided. However, when a stepparent does substantially more than offer gratuitous love and care for his stepchildren, when he instigates litigation to achieve all the rights of parenthood at the cost of interfering with the rights of a fit parent, then the same public policy attendant to the doctrine of paternity by estoppel is implicated: that it is in the best interests of children to have stability and continuity in their parent-child relationships. By holding a person such as [the] [s]tepfather [in A.S.] liable for child support, we increase the likelihood that only individuals who are truly dedicated and intend to be a stable fixture in a child’s life will take the steps to litigate and obtain rights equal to those of the child’s parent.
A.S., 130 A.3d at 771.
Jaurigue’s actions show he is dedicated to continuing to be a stable fixture in Child’s life. He filed for custody and obtained substantial parental rights to Child in order to ensure he is able to be that stable fixture for Child and to be intricately involved in her life. Under A.S., and for all the reasons explained above, we find that Jaurigue is obligated to financially support Child.
Slip op. at 13-14.
The Pennsylvania Supreme Court granted allocatur to consider:
Does the Court’s holding in A.S.v. I.S., 130 A.3d 763 (Pa. 2015), extend beyond the facts of that case and create child support obligations in third parties who seek and obtain custody rights less than those held by a biological parent?
For more information, contact Kevin McKeon or Dennis Whitaker.