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A Bucks County, Pa., judge’s decision to award primary custody of twin boys to the nonbiological parent half of a lesbian ex-couple should be affirmed, a Lambda Legal attorney argued before a Pennsylvania Superior Court panel Wednesdy. In Jones v. Boring, the partner who was the biological mother — she was artificially inseminated after the couple had been together for a number of years — had originally been given primary physical custody, and her ex was granted partial physical custody and ordered to pay child support. The boys were 4 years old when the couple split. According to a March opinion from Bucks County Judge Susan Devlin Scott, biological mother Ellen Boring married a man shortly after her relationship with Patricia Jones ended and ultimately moved to Indiana. Boring would tell her sons to call their stepfather “dad” and sought to downplay Jones’ role in their upbringing, according to the opinion. Jones eventually filed a number of contempt petitions in which she argued Boring was not complying with the custody order. Following evaluation by a court-appointed therapist, Scott found in January that it would be in the best interests of the boys if Jones were awarded primary physical custody, and Boring partial. Boring appealed to the Superior Court. The panel hearing arguments in Jones consists of Judges Jack A. Panella and Richard B. Klein and Senior Judge John T.J. Kelly Jr. Appearing on behalf of Boring, Kenneth Williams of Eastburn & Gray in Doylestown argued that Scott had employed the incorrect standard in awarding Jones primary physical custody. Scott had found that “the evolving caselaw for nontraditional families” has leaned toward a “best interest of the children” standard, and applied it in Jones. “There is no appellate case that deals with the issue of what burden of proof is required when a custody determination is to be made between two partners in such [a] nontraditional family when they separate,” Scott wrote in her March opinion. “The analogous situation is to two parents separating, not one parent and a third party who came to the relationship with the child later.” Scott cited to the Pennsylvania Supreme Court’s 2001 holding in T.B. v. L.R.M. that the nonbiological parent half of a lesbian ex-couple had standing to seek visitation, as well as to the Superior Court’s 2002 decision in L.S.K. v. H.A.N. that the nonbiological parent half of a lesbian ex-couple should have to pay child support. Williams argued before the panel that under the Pennsylvania Supreme Court’s 1980 decision in Ellerbe v. Hooks, a trial court may not remove a child from the custody of a biological parent unless it finds that failure to do so would bring the child harm. In applying the “best interest” standard in Jones, Williams said, Scott had ignored the “harm” standard of Ellerbe. Arguing on behalf of Jones, Alphonso David, a New York-based Lambda staff attorney, sought to distinguish Ellerbe from Jones, noting that the 1980 case involved adoption by a grandparent. David also said that the panel’s review of Scott’s decision was limited to whether she had abused her discretion, and nothing suggested that she had. In concluding, David argued that affirming Scott’s holding in Jones would bolster the principle that there is a distinction in Pennsylvania law between nonbiological parents who have helped raise a child since birth and other third parties, such as stepparents, who become involved in a child’s life after he or she is born. David was joined at the appellee’s table by Maureen Gatto of Dorian Goldstein Wisniewski & Orchinik in Bensalem, who handled the case at the trial level. The Center for Lesbian and Gay Civil Rights served as co-counsel. In an interview with The Legal Intelligencer Wednesday afternoon, David said the case is important for members of the gay community because Boring is effectively arguing that nonbiological parents who have had children through same-sex partnerships need to meet a higher standard in order to gain custody of their children than do their heterosexual counterparts. A ruling in Jones’ favor, he said, would reaffirm the “proposition that the courts will stand for the best interest of the child, irrespective of the sexual orientation of the parties.”

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