In 2019, an important case was decided by the Pennsylvania Superior Court. That case was RL v. MA, 209 A.3d 391 (Pa. Super. 2019). The RL case pertained to a custody dispute between a same-sex couple. In Pennsylvania’s Child Custody Act, there is only one presumption. That presumption is under Section 5327, which is titled: “Presumption in Cases Concerning Primary Physical Custody.” Under subsection “b” of that Section titled: “Between a Parent and Third Party,” it reads: “in any action regarding the custody of a child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of the parent may be rebutted by clear and convincing evidence.” In the RL case, the nonbiological mother was seeking equal physical custody of the child.

The Superior Court has defined clear and convincing evidence “as presenting evidence that is so clear, direct, weighty, and convincing so as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.” The Superior Court has further explained: “even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents’ side.” According to the Superior Court: “when making a decision to award primary physical custody to a nonparent, the trial court must ‘hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.’” Further, in cases between a third party and a parent, the third party bears the burden of production and the burden of persuasion and the burden is a heavy burden being that it is a clear and convincing standard.