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Ruling on a nationwide issue of first impression at the appellate level, the Pennsylvania Superior Court has announced that a former domestic partner will have to pay child support to the biological mother of five children conceived and born through artificial insemination during the couple’s relationship. In a unanimous opinion, the court’s three-judge panel invoked the doctrine of equitable estoppel to hold the non-biological mother to a trial court order requiring payment of child support, medical expenses and accrued arrearages. “This is the first appellate court in the country to recognize that same-sex parents have the same duties and obligations towards their children regarding child support,” said Stacey L. Sobel, executive director of The Center for Lesbian and Gay Civil Rights. “It is essential that all of our children are taken care of regardless of who the parents are.” Sobel and the Philadelphia-based center’s legal director, Tiffany L. Palmer, served as co-counsel for the biological mother, L.S.K. Mark A. Momjian and Meredith Brennan of Philadelphia-based Schnader Harrison Segal & Lewis also represented L.S.K., along with Shannon Minter and Courtney Joslin from the San Francisco-based National Center for Lesbian Rights. Momjian, who handled the oral argument, said he sees the superior court’s decision in L.S.K. v. H.A.N. as a victory not just for the gay and lesbian community, but more importantly, for children. “The court isn’t going to allow non-biological parents to play a shell game in which they can claim the role of in loco parentis when they want to obtain the rights associated with being a parent, and then disclaim it at will when they want to avoid the responsibilities that come with being a parent,” the attorney said. According to the superior court’s opinion, the Cumberland County, Pa., trial court had granted L.S.K. and H.A.N. joint legal custody of the five children, with partial physical custody going to H.A.N. The two women were involved in a relationship from the mid-1980s until 1997, during which time they decided to have children together. Initially, L.S.K. conceived a son through artificial insemination, according to the opinion. At the time of the child’s birth, H.A.N. was laid off from her job. Accordingly, she stayed home to care for the newborn while L.S.K. resumed work and supported the family, Judge Joan Orie Melvin wrote for the court. Though H.A.N. was to bear the couple’s second child, she was unable to do so because of a medical condition. L.S.K. was again artificially inseminated, this time conceiving quadruplets. After the birth, H.A.N. took care of the children while L.S.K. returned to her job, according to the opinion. Four years later, the parties separated. The biological mother was transferred to California and took the children with her. H.A.N. remained in Pennsylvania. The parties, the opinion states, never entered into any parentage agreement or written contract regarding their rights or liabilities relating to the children. While L.S.K. alleged an oral agreement providing that she would take the children, with H.A.N. paying support in the event of a separation, H.A.N. claimed such an agreement never existed. In 1998, the non-biological mother filed a complaint for custody, while their biological mother filed for child support. Objecting to the support request, H.A.N. alleged that L.S.K. “had no legal cause of action against her for child support in the absence of an order granting her legal custody or in loco parentis status,” the opinion states. Subsequently, the trial court made the legal and physical custody grants mentioned above. That court ultimately found the non-biological mother estopped from claiming she was not liable for child support. On appeal, H.A.N. asked the Superior Court to determine whether she owed a duty of child support to her former partner, and if in fact she owed a duty, to decide whether the amount of support would be dictated by Pennsylvania’s statutory child support guidelines. Operating under an abuse of discretion standard, the superior court panel — rounded out by Correale F. Stevens and John T.J. Kelly Jr. — noted that research revealed no state appellate cases specifically on point. And though other jurisdictions had addressed similar support questions, the court found those cases distinguishable from the one at bar. As an initial matter the panel stated that, according to the trial court, H.A.N. stood in loco parentis to the five children. “‘The status of in loco parentis embodies two ideas,’” Orie Melvin wrote, quoting the state high court case T.B. v. L.R.M. “‘First, the assumption of a parental status, and, second, the discharge of parental duties.’ … H.A.N.’s in loco parentis status allowed her to have standing to petition for custody of the children.” The court said that although the non-biological parent had gained certain parental rights by receiving joint legal and partial physical custody, she denied any obligation to provide financial support based on the assertion that her status vis � vis the children was similar to that of a stepparent. But the judges disagreed, pointing to the fact that H.A.N. and L.S.K. decided to start a family together, as opposed to H.A.N. entering into a relationship where children already existed. “Here,” Orie Melvin wrote, “H.A.N. committed herself to a course of conduct which involved significant undertakings and commitment by [L.S.K.] Contrary to H.A.N.’s contentions, we find that in the absence of any legislation that prevents such an undertaking, equitable considerations can be applied in weighing what is just and necessary to protect the rights, interest and welfare of the children involved.” It was clear from the record, the court found, that the non-biological mother acted as a co-parent with the biological mother in all areas concerning the children’s conception, care and support. The panel cited numerous examples in support of that position and concluded that by virtue of the custody agreement, H.A.N. maintained influence over the children. “Moreover, equity mandates that H.A.N. cannot maintain the status of in loco parentis to pursue an action as to the children, alleging she has acquired rights in relation to them, and at the same time deny any obligation for support merely because there was no agreement to do so,” the opinion states. “Although statutory law does not create a legal relationship, applying equitable principles we find that in order to protect the best interest of the children involved, both parties are to be responsible for the emotional and financial needs of the children.” Finally, the court decided that Pennsylvania’s support guidelines would control the amount of child support payable by H.A.N. Sobel commented that during the last year, Pennsylvania has seen a number of critical decisions regarding same-sex families. “We are extremely pleased that the courts have looked at the law and applied the law fairly in all of these cases,” she said. “In the past we were unsure if our courts would address these questions without anti-gay bias. Now we know that our courts will reach these decisions on the same basis as any other family law matter.” Carol J. Lindsay of Saidis, Shuff, Flower & Lindsay in Carlisle, Pa., represented H.A.N. She could not be reached for comment prior to press time.

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