Same Sex Partner Denied Standing to Sue for Custody I KingSpry

Not the Mama: Former Same-Sex Partner Denied Standing to Sue for Custody of Child Born and Partly Raised During Relationship

Posted on October 26th, 2017
by Ryan K. Fields

In a decision issued on October 11, 2017, the Superior Court affirmed the trial court’s decision which ruled a former partner in a same-sex relationship lacked standing to sue for custody of a minor child born during the relationship.

J.W.H. was born in Florida in 2006, prior to the recognition of same-sex marriage or second party adoption in the state.

He was the biological child of J.H., with whom C.G. was in a same-sex relationship prior to and after the child’s birth. Five years after J.W.H. was born, J.H. and C.G. separated. J.H. moved with the child to Pennsylvania in 2012, and C.G. filed for shared legal custody and partial physical custody in 2015.

After J.H. objected to C.G.’s complaint for custody, the trial court held a hearing and determined that C.G. lacked the necessary standing to sue for custody. First, the court concluded that C.G. was not a parent of J.W.H. because she was neither the biological mother of the child, nor did she formally adopt J.W.H. Next, the court considered whether C.G. stood in loco parentis, and found that the evidence did not establish that C.G. stood in the place of a parent to J.W.H. The trial court then dismissed C.G.’s custody complaint.

C.G. appealed the decision to the Superior Court, which ultimately affirmed the trial court’s decision. While C.G. did participate in many of the prenatal activities, and was present for much of the child’s early life, the Superior Court agreed with the trial court that the evidence did not reveal the existence of a parental relationship between C.G. and J.W.H.

When making its decision, the Superior Court relied heavily on the following facts:

  • H. decided on her own to conceive J.W.H., and the parties never agreed to raise a child together prior to conception;
  • G. did not name J.W.H. in any of her estate planning or legal documentation;
  • The parties did not take advantage of second party adoption in Florida when it became legal in 2010;
  • G. never participated in educational or medical decisions related to J.W.H. while the couple were together;
  • The couple never drafted or signed a co-parenting agreement;
  • W.H. was not given C.G.’s surname;
  • After separation, C.G. did not have any regular visits with J.W.H.

 

The circumstances of the above case mimic those of many same-sex couples in Pennsylvania. The best way for non-biological parents in Pennsylvania to ensure their custodial rights is to adopt the child. Any biological or non-biological parent who is questioning their or their partner/spouse’s rights to their children should seek the advice of counsel.

 

 

Lehigh Valley Family Law is a publication of KingSpry’s Family Law Practice Group. It is meant to be informational and does not constitute legal advice.