Barring a woman from seeking custody of her former same-sex partner’s biological child could have far-ranging legal implications that could threaten family relationships, particularly in cases where children are conceived using assisted reproductive technologies, an attorney told the Pennsylvania Supreme Court on Tuesday.
Attorney Tiffany Palmer of Jerner & Palmer, whose client is seeking to assert custody of her ex-partner’s biological child, urged the justices to reject the state Superior Court’s holding that a same-sex partner who had not adopted a child could not be considered a parent. That legal error, she argued, has thrown the custody rights of all non-biological parents into question.
“It applies to any case where only one parent is a genetic parent,” Palmer said. “It puts the entire [in loco parentis] doctrine into flux.”
Last year, the Superior Court in C.G. v. J.H. affirmed a Centre County judge’s determination that C.G., who had been in a relationship with the biological mother of a son born in Florida through artificial insemination, 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 Pennsylvania Superior Court Judge Carl Solano’s opinion. J.H. claimed that she made all of the important decisions regarding the child, that C.G. provided minimal financial support and that mother and son both moved out of C.G.’s Florida home to Pennsylvania when J.W.H. was 6 years old.
C.G. countered that 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 was not yet legal in Florida in 2006 when J.H.W. was born, C.G. did not have standing as a parent.
The key question, according to Palmer, was whether the court should have treated her client as a third party or as someone capable of establishing in loco parentis standing. According to Palmer, the Superior Court failed to apply the proper test for determining standing by focusing on adoption and post-separation conduct, and so the ruling could be used by people looking to skirt their child support obligations, or limit the contacts of non-biological parents.
Palmer added that the ruling goes against the small, but growing body of case law involving assisted reproductive technology, such as the case In re Baby S., in which the Superior Court denied actress and television personality Sherri Shepherd’s attempt to back out of a gestational surrogacy contract.
“Its bold statement that saying ‘parent’ is defined only by biology and adoption is wrong,” Palmer said.
J.H.’s attorney, Julia Rater of McQuaide Blasko, however, disputed the argument that the court misapplied the test since the case involved a same-sex couple, or that the Superior Court’s finding will impact other custody issues. Rater told the justices that the correct analysis was applied, and the facts simply weighed against granting C.G. in loco parentis standing.
“Assisted reproduction cases do not change the outcome in this case,” Rater said.