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The Pennsylvania Superior Court has ruled that a child’s aunt and uncle may obtain primary custody of a child although the natural father wanted custody for himself. Recently, the high court has ruled that third parties have no standing in adoption cases when one natural parent contests the adoption. But Superior Court Judge Debra Todd’s emphasis in McDonel v. Sohn was on the best interests of the child embroiled in the custody battle and the child’s relationship with the third parties. The decision hinged on the fact that the aunt and uncle had assumed significant responsibility for the child since its birth, while the natural father did not become involved until the child was 3-1/2 years old. Judges Justin Johnson and Patrick Tamilia also sat on the panel. According to Todd’s 14-page opinion, the father, Terry Spangler, met the child’s mother, Julie Sohn, when he was a youth pastor at a church in Harrisburg, Pa. Spangler, then 29, counseled Sohn, then 18. Sohn moved in with Spangler and his wife in 1992. She and Spangler began a sexual relationship, conceiving the child identified as “C.S.” in the opinion. Sohn later had a second child with another man. Todd said that Sohn had “serious psychological problems,” so her sister and brother-in-law, Jennifer and Ronald McDonel, were actively involved in the child rearing. Until C.S. was 3-1/2 years old, Todd said, Spangler had very limited contact with the child and even challenged his paternity. In 1996, he filed a petition for partial custody and began seeing C.S. one weekend per month. Sohn died in 1998 of complications from a suicide attempt. The McDonels filed suit for custody of C.S., but Spangler refused to return the child after one of his visitation weekends. The Dauphin County Common Pleas Court ordered a temporary shared-custody arrangement, granting Spangler primary physical custody and the McDonels partial custody. The McDonels were granted full custody of C.S.’ sister, M.S. Dauphin County Common Pleas Court Judge Todd Hoover entered the final order, finding that it was in C.S.’ best interests to award the McDonels joint legal and primary physical custody and give Spangler partial physical custody. Spangler appealed to the Superior Court, challenging the trial court’s ruling that the McDonels had in loco parentis status and could sue for custody. Todd quoted the state supreme court’s definition of “in loco parentis,” which refers to “a person who puts himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption.” At the standing hearing, Jennifer presented evidence of the exact number of days C.S. had spent with them since her birth. Most years, C.S. had spent at least 100 days with the McDonels. In 1995, she was with them for 200 days. Todd said that was significant evidence of the relationship between the McDonels and C.S. Additionally, Sohn had executed a power of attorney granting the McDonels in loco parentis status before her death. A psychologist also testified the couple had established themselves in loco parentis. Spangler cited two state supreme court cases, G radwell v. Strausser, from 1992, and B.A. v. E.E., decided in 1999, which at first blush may seem controlling. In both, the justices said a third party cannot assert a position of in loco parentis against the wishes of one or both of the natural parents. Spangler said he could not object to the McDonels early relationship with C.S. because he was not aware of it. “Rather, his argument appears to be that since he now objects to custody by them, and since he neither consented to their new role nor acquiesced in it, this is sufficient to prevent a finding that they acted in loco parentis,” Todd said. “We reject this argument as it is clear that the cited explanation from Gradwell refers only to situations where the natural parent’s actions necessarily would conflict with a finding that a third party achieved in loco parentis status. Here, Spangler initially denied paternity, had little contact with C.S., and no contact with the McDonels and so could not have been an obstruction to the McDonels’ developing relationship with C.S.” And Todd said there was a significant difference between B.A. and Spangler’s case. “In [ B.A.], it was clear that the objecting natural parent had opposed adoption of the child and himself sought custody from the child’s birth,” she said. “Thus, the third party’s actions in that case were clearly ‘in defiance of’ the parent’s wishes.” Todd said the McDonels clearly proved their in loco parentis status through Sohn’s granting of power of attorney, the psychologist’s testimony, and the amount of time they spent with the child. Looking to the propriety of the trial court’s custody determination, Todd said the main question was what was in the child’s best interests. Natural parents have a prima facie right to custody, but that advantage may be overcome with proof that a child would benefit from the third party’s custody, she said. Using that test, the unanimous Superior Court found the trial judge did not abuse his discretion. Specifically, Todd relied on the psychologist’s testimony that it would be in C.S.’ best interests for the McDonels to assume primary custody; the fact that Spangler was not involved in the first 3-1/2 years of the child’s life; Spangler’s behavior when he refused to return C.S. after Sohn’s death; and the fact that C.S. would be able to live with her half-sister in the McDonels’ home.
Kids and the Law: Juvenile Justice and Child Law Practice. November 6-17.

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