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In a major triumph for not only gays and lesbians, but third parties generally in custody cases, a 5-2 Pennsylvania Supreme Court has ruled that same-sex partners have standing to seek custody of their former partners’ biological children, so long as they can prove in loco parentis status. “In loco parentis” refers to an individual who acts as a child’s lawful parent by assuming the responsibilities of a parental relationship without going through the formalities of an adoption. “The case is important because it recognizes that same-sex parents retain the same rights and responsibilities after a separation [as] any other parent,” said Stacey Sobel, executive director of the Philadelphia-based Center for Lesbian and Gay Civil Rights. “It shows that families today are made up of different types of people.” The case had been closely watched, in part, to see if the state justices would follow the U.S. Supreme Court’s 2000 decision in Troxel v. Granville. The Troxel Court struck down a broad Washington state law granting grandparents visitation rights. The court reinforced a parent’s fundamental right to control the care of his or her child. But in T.B. v. L.R.M., the majority said what mattered most was the best interests of the child and the bond the former partner had formed with that child. 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 caesarian section on Aug. 27, 1993. The parties did not have any formal document detailing their co-parenting agreement. 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 checkups. 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. 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 Superior Court en banc affirmed, also finding that T.B. had an in loco parentis relationship with the child. L.R.M. argued to the state supreme court that it should no longer use in loco parentis as a means of granting custody because the government should not interfere with the wishes of a fit biological parent. But Zappala said, regardless of the fact that L.R.M. did not make those arguments against the in loco parentis doctrine in the lower courts, her claims could not persuade the court to make such a sweeping change in the common law. Quoting the Superior Court’s 1996 decision in J.A.L. v. E.P.H., Zappala said: “The in loco parentis basis for standing recognizes that the need to guard the family from intrusions by third parties and to protect the rights of the natural parent must be tempered by the paramount need to protect the child’s best interest.” L.R.M. also argued that the Legislature has provided no statutory protection of a same-sex partner’s rights to custody or visitation of his or her former partner’s child. Such a matter should be left in the Legislature’s hands, she claimed. But Zappala said that claim was irrelevant because T.B. had never cited a statutory provision in her arguments but had instead solely invoked the in loco parentis doctrine. Even if the court would not choose to revoke the doctrine, L.R.M. argued, T.B. still had not achieved in loco parentis status. Because T.B. could not legally adopt the child, L.R.M. claimed, she could not assume the duties of a lawful parent. She referenced state law prohibiting same-sex marriages and the Superior’s Court 2000 decision in In re Adoption of C.C.G. that a same-sex partner cannot adopt the biological parent’s child without that parent giving up parental rights. But Zappala indicated that the same-sex factor of the case was not the court’s focus. “Simply put, the nature of the relationship between [L.R.M.] and [T.B.] has no legal significance to the determination of whether [T.B.] stands in loco parentis to A.M.,” Zappala said. “The ability to marry the biological parent and the ability to adopt the subject child have never been and are not now factors in determining whether the third party assumed a parental status and discharged parental duties. What is relevant, however, is the method by which the third party gained the authority to do so.” It was clear from the record that L.R.M. agreed to and encouraged T.B.’s performance of parental duties. “Thus, this is not a case where the third party assumed the parental status against the wishes of the biological parent,” Zappala said. And, as expected, L.R.M. argued the court should follow Troxel, but Zappala said there were distinct differences between L.R.M.’s case and Troxel. “Unlike Troxel, the instant case does not involve an overly broad statute or the abandonment of the presumption that a fit parent will act in the best interests of the child,” he said. “Here, the issue is one of standing based upon a well-established common law doctrine. A determination of standing simply implies that the party has a substantial interest in the subject matter of the litigation and that the interest is direct, immediate and not a remote consequence. Thus, our opinion does not speak to [T.B.'s] chance of success on the merits, but merely affords her the opportunity to fully litigate the issue.” DIVORCE CODE In a five-page dissenting opinion joined by Pennsylvania Supreme Court Justice Ronald Castille, Justice Thomas Saylor argued the majority should have paid more deference to � 5301 of the Domestic Relations Code. That section states that statutory child custody provisions are intended to ensure continuing contact with both parents “after a separation or dissolution of the marriage.” Saylor said that statement made clear that custody disputes “are understood as occurring primarily in the framework of biological or legal parenting and the break-up of an attendant marital relationship.” “By dismissing as irrelevant [T.B.'s] statutory incapacities to marry [L.R.M.] and to become a legal parent of A.M., the majority undermines the Legislature’s prerogative to define the parameters of its own policy,” Saylor said. Saylor also argued the in loco parentis doctrine had no place in the case. “Thus, a faithful application of the in loco parentis doctrine requires, at a minimum, due regard to the legal definitions of the relevant relationships,” Saylor said. “In this case, because [T.B.'s] relationships with [L.R.M.] and with A.M. are not recognized as familial relationships under Pennsylvania law, I believe that the court’s decision to recognize her claim to in loco parentis status vis-�-vis A.M. marks not only a departure from established common law principles, but also one which appears to be in conflict with an expressed legislative design.” Saylor said T.B.’s emotional bond with A.M. was not as significant as the majority opinion led one to believe. “As the legislative policy is currently fashioned, emotional bonds and a demonstrated custodial interest, outside of the context of legally recognized familial relationships, are not sufficient grounds to confer standing to petition for child custody over and against the natural parent’s interests,” Saylor. REACTION Roger D. McGill of Smorto Persio Webb & McGill in Ebensberg, Pa., and Patricia M. Logue of the Lambda Legal Defense and Education Fund Inc. in Chicago represented T.B.; Johnstown, Pa., attorney Nicholas Banda was counsel for L.R.M. McGill said he thought the court definitely stressed the in loco parentis doctrine over the fact that the case involved same-sex partners. He said the decision clarified the law more than it expanded the law. “It clarifies the importance of a situation where an adult has a relationship with the child,” he said. But Banda said the decision will have far-reaching implications. “It opens the door to a lot of other situations, a lot of other same-sex situations where children are involved. You’re going to see a lot more of these types of cases,” Banda said. “It was a gray area and something that maybe people didn’t want to put out the time and money and effort to enforce because their rights weren’t really clear.” Banda also said he thinks the decision is inconsistent with other law concerning same-sex partners. “If a same-sex partner cannot legally adopt, how can they achieve the status of in loco parentis?” he said. Logue addressed the argument about inconsistency with same-sex marriage laws. She said the Legislature’s decision not to allow such marriages had nothing to do with other same-sex partners’ rights. “People separate how they feel about adult relationships from the need to protect a parent-child relationship,” Logue said.

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