same-sex custdoy

The Pennsylvania Superior Court has affirmed an order granting shared custody to a child’s biological mother and nonbiological mother.

A three-judge panel consisting of Superior Court Judges Judith Olson, Alice Dubow and Correale Stevens upheld a Lehigh County judge’s order in favor of the nonbiological parent, identified as R.L., in her custody dispute with the biological mother, M.A., over their child, V.L.

According to Dubow’s opinion, R.L. and M.A. were in a “committed romantic relationship in 2012 when they made a decision together to conceive child by impregnating appellant [M.A.] via artificial insemination using sperm from R.L.’s brother. The couple planned and prepared for child’s birth together, including decorating a nursery and shopping for baby supplies. R.L. was present at child’s birth, R.L. chose child’s first name, and the couple decided together to give child R.L.’s surname. Soon after child’s birth, the couple broke up.”

The trial judge awarded shared custody to R.L. in August 2018.

On appeal, M.A. argued that R.L. did not meet her burden of showing that she should have the same amount of custody as M.A., who had the presumption of favorability as the biological parent. M.A. said the trial court erred in awarding R.L. an equal amount of time.

But Dubow said the legal action was commenced by R.L. only to memorialize an already existing informal arrangement.

“The trial court recognized a statutory presumption in favor of appellant but made a finding that R.L. rebutted that presumption by evidence that was so clear and convincing based upon the undisputed decisions regarding custody that the parties had made together both prior to and following their separation,’” Dubow said.

“The trial court found R.L.’s testimony to be credible that appellant and R.L. had an informal agreement to share physical custody of child on a weekly rotation from June 2014 until February 2018,” Dubow continued. “The trial court made a finding that child had been thriving in this 50-50 custody arrangement for 70% of his life, and that the only reason appellant discontinued the week-to-week arrangement was because appellant was upset when R.L. contacted appellant’s place of employment.”

As for M.A.’s claim that the trial judge’s decision was made devoid of evidence, Dubow said, “The trial court engaged in an analysis of the Section 5328 custody factors, applied the statutory presumption in favor of appellant, found that clear and convincing evidence rebutted that presumption, found that shared physical and legal custody was in child’s best interest, and awarded shared physical and legal custody to appellant and R.L. The record supports the trial court’s findings.”

R.L. represented herself in the custody case and could not be reached for comment.

M.A.’s attorney, Michael Shelton of Legal Solutions in Doylestown, did not respond to a request for comment.