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A Pennsylania Superior Court panel has affirmed a Bucks County judge’s decision to award primary custody of twin boys to the nonbiological parent half of a lesbian couple whose relationship ended. In Jones v. Jones[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 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 in Jones filed its memorandum opinion affirming Scott’s order less than a month after oral arguments in the matter were held in Philadelphia. “Once it is established that someone who is not the biological parent is in loco parentis, that person does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interests of the children to maintain that relationship or be with that person,” the panel’s opinion states, citing relevant Pennsylvania case precedent. The panel in Jones consisted of Judges Jack A. Panella and Richard B. Klein and Senior Judge John T.J. Kelly Jr. In reaching their decision, the judges declined to address Jones’ argument that Pennsylvania should adopt a simple “best interests” test, and that both the presumption in favor of biological parents and the “clear and convincing evidence” standard should be left behind. “Jones asserts that the law is changing,” the opinion states. “As the concept of family evolves the law will evolve along with it. “Since the judge determined, and we agree, that there was ‘clear and convincing evidence’ in this case, we do not reach [Jones' argument] today,” it states later. The judges noted that in its 2000 decision in Charles v. Stehlik, the Pennsylvania Supreme Court affirmed the awarding of primary custody to a child’s stepfather, rather than natural father, following the death of the mother. “While the scale was tipped in favor of Boring, Jones produced clear and convincing reasons to even the scale and then tip it on her side,” the opinion says. “Jones did not establish that Boring was unfit, and was not required to do so, but Jones did clearly and convincingly establish that the children would be better off with her as the primary custodian and that the children’s relationship with both parties would be better fostered if custody were awarded to Jones.” Arguing on Jones’ behalf before the panel earlier this month was Alphonso David, a New York-based Lambda staff attorney. Maureen Gatto of Dorian Goldstein Wisniewski & Orchinik in Bensalem, Pa., who handled the case at the trial level, joined David at the appellee’s table. The Center for Lesbian and Gay Civil Rights served as co-counsel. Stacey Sobel, executive director of the center, said a key aspect of the decision is “that it clearly shows that courts are going to look at the rights of in loco parents in a very similar way to biological parents in custody matters.” Boring’s attorney, Kenneth Williams of Eastburn & Gray in Doylestown, Pa., did not immediately respond to a call seeking comment.

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