A child custody dispute that predated changes in Florida’s same-sex marriage and adoption laws ended poorly for the former partner of a child’s biological mother.
The Pennsylvania Supreme Court affirmed two lower court rulings that barred the ex-partner from seeking custody because she has no biological connection to the child and did not legally adopted him because it was barred at the time.
C.G. was in a relationship with the biological mother of a son born in Florida through artificial insemination. A Pennsylvania Superior Court judge in C.G. v. J.H. affirmed a Centre County judge’s determination last year that she was not entitled to custody of the boy because she was not legally considered a parent. The litigants are identified in court papers by their initials only.
J.H. alleged in preliminary objections to C.G.’s suit that the decision to have the child, J.W.H., was hers alone and C.G.’s role was solely that of her girlfriend, according to Superior Court Judge Carl Solano’s opinion. J.H. claimed she made all of the important decisions for her son, C.G. provided minimal financial support, and mother and son moved from C.G.’s Florida home to Pennsylvania when J.W.H. was 6.
C.G. contended she had standing in loco parentis under Pennsylvania’s child custody law. However, the trial judge held that because same-sex marriage and second-parent adoption were not yet legal in Florida in 2006 when J.H.W. was born, C.G. did not have legal standing as a parent.
The Superior Court upheld that decision, and C.G. appealed. Earlier this year, the high court agreed to examine a single issue: “Whether the Superior Court erred in affirming the decision of the trial court that a former same-sex partner lacked standing both 1) as a parent and 2) as a party who stood in loco parentis to seek custody of the child born during her relationship with the birth mother where the child was conceived via assisted reproduction with an anonymous sperm donor and the parties lived together as a family unit for the first five years of the child’s life.”
The high court upheld the lower court rulings Sept. 21. While the justices were unanimous in the result, three diverged from the majority’s analysis on several broader issues.
The majority, led by Justice Sallie Updyke Mundy, rejected the ex-partner’s argument that parentage under Section 5324(1) of the custody statute should be broadened to include those who intend to bring a child into the world through assistive reproductive technology, or ART, and then co-parent the child.
“The instant case is not one where a statutory presumption would be bestowed on a similarly situated male based on cohabitation in the absence of marriage and, as highlighted throughout, the factual findings of the trial court determined that C.G. did not jointly participate in child’s conception and hold him out as her own,” Mundy wrote in the majority opinion. The court found no factual basis to expand Pennsylvania’s definition of parent.
“C.G. contends our case law stands for the broad proposition that parentage can be established by intent in situations where a child is born with the aid of assistive reproductive technology,” Mundy continued. “It does not. The jurisprudence in this commonwealth has declined to void contracts involving surrogacy and/or the donation of sperm or ova recognizing a separate mechanism by which legal parentage may be obtained (or relinquished).”
Mundy’s opinion was joined in full by Chief Justice Thomas Saylor and Justices Max Baer and Debra Todd.
Justice David Wecht wrote a separate concurring opinion, joined by Justice Christine Donohue, agreeing with the result but calling the case “a missed opportunity for this court to address the role of intent in analyzing parental standing in ART cases.”
He said he would “embrace an intent-based test for parentage for persons pursuing parentage through ART” that looks at whether the biological mother and the third party seeking custody ever intended to co-parent the child.
“Under the majority’s formulation of parentage by contract, one becomes a parent through use of ART and the formation of a binding contract regarding ART,” Wecht said. ”Fair enough. But suppose that the members of a same-sex couple decide that one partner will become pregnant via ART and sperm donation; it is entirely foreseeable that only the partner being impregnated would contract with the ART facility. The second partner, who would have no biological connection to the child, would have no contract establishing a claim to parentage.
With adoption, Wecht continued, “the second partner has no claim to parent status and no standing to pursue any custody rights.”
Justice Kevin Dougherty penned his own concurring opinion, arguing, “Nothing warrants, much less necessitates, the majority’s cramped interpretation of ‘parent’ under 23 Pa.C.S. Section 5324(1), the inevitable result of which will be the continued infliction of disproportionate hardship on the growing number of nontraditional families — particularly those of same-sex couple s— across the commonwealth.
“According to the majority, our precedent supports a conclusion parentage for standing purposes may be proven in only four ways: biology, adoption, a presumption attendant to marriage, or ‘legal parentage by contract,” Dougherty said. ”I see no good reason why the court should continue to impose such an overly restrictive formulation, which fails to take into account equitable principles and may ultimately frustrate the paramount concern of protecting a child’s best interests.”
Counsel for C.G., Tiffany Palmer of Jerner & Palmer in Philadelphia, said by email she was disappointed with the decision and the court’s failure to “adopt a parentage by intent standard.”
J.H.’s attorney, Julia Rater of McQuaide Blasko in State College, Pennsylvania, could not be reached for comment by deadline.