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In an exciting move for third parties in custody disputes — and for same-sex partners — the majority of an en banc Superior Court in Pennsylvania has ruled that a lesbian has standing to seek visitation with her former partner’s biological daughter. The biological mother had been artificially inseminated after the couple began living together and the two raised the baby as co-parents. The court said the partner seeking visitation had created an in loco parentis relationship with the child. Third-party custody rights is a particularly hot issue not only in Pennsylvania, but across the nation. Just Monday the U.S. Supreme Court struck down a broad Washington state law allowing grandparents visitation rights in Troxel v. Granville. But now third parties can be roused by the ruling in T.B. v. L.R.M. The 8-1 court said T.B.’s three-year stint as a child’s co-parent afforded her the right to seek visitation. However, because the trial court had not fully considered how the child would be affected by visitation with T.B., the case was remanded for a best interest of the child analysis. Donald M. Millinger of Klehr Harrison Harvey Branzburg & Ellers, a national co-chair of the Lambda Legal Defense, said he was thrilled by the decision. “It’s wonderful from a legal perspective. However, it’s a shame from T.B.’s perspective,” he said. Johnstown, Pa., attorney Nicholas Banda represented L.R.M. He said he was disappointed that the remand will force him to “go back to square one” and wondered if the Troxel decision would have any impact. “Parents can raise their children as they see fit. Any interference is kept very narrow,” he said. One of Banda’s concerns was that in loco parentis status is a “judicially-created concept.” “I asked the court to disregard in loco parentis status at the argument,” he said. T.B.’s attorney, Roger D. McGill of Smorto Persio Webb & McGill, could not be reached for comment. CO-PARENTS According to the opinion, the parties, L.R.M. and T.B., began dating exclusively in the mid-1980s and moved in together in 1990. They bought a home together, shared financial responsibilities and had a joint bank account. They also agreed to have a child together. After some research, they decided L.R.M. would carry the child. The sperm donor, whom both parties knew, insisted that his parental rights be terminated. In 1992, L.R.M. became pregnant. T.B. helped take care of her, went with her to Lamaze classes and was in the operating room when she delivered by cesarean section on Aug. 27, 1993. The parties did not have any formal document detailing their co-parenting agreement. L.B.M. told T.B. one wasn’t necessary, according to the opinion. Both parties shared the rights and responsibilities of raising the baby, called “A.M.” in the opinion, for the first three years of her life. T.B., whom A.M. referred to as “aunt,” took care of the child whenever L.R.M. was not home, took off from work when the child was sick and shared responsibility for A.M.’s medical appointments and other check-ups, Judge John T.J. Kelly said. Soon after the three moved into a new house, T.B. moved out and had an affair. She returned to the home for a short time, but L.R.M. asked her to leave permanently, which she did. T.B. visited A.M. once after the separation, but thereafter L.R.M. refused her visitation requests, telephone calls and gifts for the child. T.B. filed a complaint for shared legal custody and partial physical custody for visitation purposes in the Common Pleas Court of Cambria County, Pa. L.R.M. countered that T.B. did not have standing to seek visitation. The parties agreed to allow a hearing officer to make findings on the claims. The officer concluded that T.B. did have standing because she had in loco parentis status and that she should have visitation with the child. Cambria County Common Pleas Court Judge F. Joseph Leahey heard arguments on L.R.M.’s exceptions and later adopted the hearing officer’s recommendations, adding a few modifications. The trial judge said the hearing officer had properly relied on a 1996 Superior Court case, J.A.L. v. E.P.H., in which a three-judge panel reversed a common pleas court judge and ruled that J.A.L. had standing as a third party to petition for partial custody of the child born to her former lesbian partner, E.P.H., while they were living together. The court said the fact that J.A.L. was there for the child’s early development and acted as a “parenting partner” was enough to demonstrate her bond with the child, and to afford her in loco parentis status. The court pointed out that both women intended J.A.L. to act as a parent, that the parties lived together as a family for many years before the child was born, and that E.P.H. intended her child to be the child of both women. L.R.M. appealed the trial court’s decision and petitioned for a stay pending appeal. The trial court denied her request for the stay, so L.R.M. appealed to the Superior Court. The petition was granted in December 1997, and Kelly said as far as the court knew, T.B. had not seen A.M. since that time. A three-judge Superior Court panel heard the appeal on standing and recommended that the case go before the court en banc. STANDING As her main issue, L.R.M. argued T.B. was required to prove that she had created a psychological bond with A.M. so significant that the child would view her as a parental figure. Because T.B. did not, L.R.M. said, she had not proved she had standing. Discussing in loco parentis status, Kelly cited a passage from J.A.L. in which the court said “where a petitioner who is not biologically related to the child but has established a parent-like relationship with the child seeks not to supplant the natural parent, but only to maintain his relationship with the child through reasonable visitation or partial custody, his burden to establish standing is easier to meet.” Kelly said it was clear that L.R.M. and T.B. had been involved in an exclusive intimate relationship, and that T.B. had a special relationship with A.M. “In light of the relationship of the parties prior to A.M.’s birth and the evidence presented regarding the three years the parties lived together after A.M. was born, we conclude that [T.B.] assumed and discharged obligations and duties incidental to a parental relationship with the child,” Kelly said. “The fact that [L.R.M.] was the child’s primary caregiver or that her mother also helped [L.R.M.] at home following the delivery does not discount [T.B.'s] clear and steady role in the child’s life for the first three years.” BEST INTEREST However, what was not as obvious to the court was how an award of custody would affect the physical, intellectual and spiritual well being of A.M. In other words, there was no finding as to what was in the child’s best interest. Third parties have a heavy burden when it comes to fighting a biological parent. But that burden is not as heavy in a visitation case as in a custody case. There are several factors the court considers in any instance, including parenthood, the length of time the child has been separated from the person seeking custody, the adverse effects the relationship’s disruption will have on the child and the fitness of the person seeking custody. “Thus, we emphasize, a full inquiry is essential to determine what serves a child’s best interest; all pertinent facts surrounding the contesting parties must be fully explored and developed,” Kelly said. “The paramount focus is the best interest of the child involved, not the respective rights of the contesting parties.” But that focus was lacking in the lower opinions, Kelly said. “Neither the hearing officer nor the trial court has given us specific reasons for their recommendations / decision that partial custody is in A.M.’s best interest, other than the evidence of bonding between [T.B.] and A.M,” he said. “Granted, the bonding that occurred between [T.B.] and A.M. is indeed a significant factor in the analysis, but it is not dispostive. “Notably absent from the hearing officer’s or trial court’s analyses is any critical discussion of [T.B.'s] child-care skills, her ability to understand and meet the needs of the child, her new home environment, or her conduct and interests from which the child may or may not benefit through continued contact.” Kelly remanded for an in-depth best interest of the child analysis. In a concurring and dissenting statement, Judge Joseph Del Sole said he agreed with the majority in all respects “save one.” “I conclude that the trial court had a sufficient basis to determine that limited visitation was in the child’s best interest.” Del Sole said he would vacate the stay and permit implementation of the trial court’s visitation order. Ruth Harlow, deputy legal director of the Lambda Legal Defense at the national headquarters in New York, called the decision “important and strong.” Lambda had filed an amicus brief in the case. “It shows that the courthouse doors will be open to families like T.B.’s and L.R.M.’s, and a decision will be made as to whether the relationships that have been created can continue,” she said. Harlow said Troxel will most likely not have an effect on any further litigation in T.B.’s case. “They’re very different circumstances. The U.S. Supreme Court was very careful to say [ Troxel] was not a broad, sweeping ruling,” she said. Millinger said the significance of Troxel is that both the majority and dissent acknowledged the changing face of the modern family. “In Troxel, J.A.L. and T.B., the court is saying the traditional family is not ‘it’ anymore,” he said. “There are different kinds of families and that’s OK.” Most importantly, he said, the en banc T.B. court upheld the same rationale a three-judge panel used in J.A.L. “The law is reaffirmed and being applied,” he said. OTHER JURISDICTIONS Several other jurisdictions have also recognized same-sex partners’ rights to custody and visitation, including Massachusetts, New Mexico and Wisconsin. A New Jersey trial court was the first court in the nation to award joint custody to a non-biological parent following the break-up of her same-sex relationship with the child’s biological parent. In R.E.M. v. S.L.V., FD-15-748-98N (Nov. 2, 1998), Superior Court Judge Vincent Grasso of Ocean County, N.J., found that both partners were parents to the child. California, New York and Vermont have all declined to acknowledge such rights.

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