In a year when there have been relatively few published opinions and few of those offering much precedential value, the year ends with an important ruling by the Pennsylvania Supreme Court.
The question in A.S. v. I.S. (8 MAP 2015) revolved around the matter of when a step-parent can owe child support. In this case, a mother gave birth to children in Serbia in 1998 and later married the Defendant. Together they brought the children to America and the Serbian father of the children lost contact by 2006. In 2009 Mother and step-father separated. In July 2012 Mother expressed an intention to move to California. Step-father filed to prevent that asserting that he was in loco parentis (in the place of a parent) and as such had custody rights under the statute governing standing. Standing was sustained and the custody case concluded with the parents being awarded shared legal and physical custody of the children. No doubt chastened by having her plans to relocate foiled, Mother filed an action for support to which step-father objected stating that his position in loco parentis did not imply a financial duty to the children.
Father’s position was sustained by both the trial and Superior Courts. Mother petitioned the Supreme Court to hear the matter and review was granted.
The 3-1-1 decision issued on December 29, 2015 does not establish a bright line test. Fundamentally, it sustains the view found in Com. ex rel McNutt. v. McNutt that step-parents are not generally liable to support children who are neither their progeny nor their adopted children. 496 A.2d 816,817 (Pa. Super. 1985). See also DeNomme v. DeNomme, 544 A.2d 63,65 (Pa. Super. 1988) It also approves the holding in Drawbaugh v. Drawbaugh, holding that assertion of “minimal” continuing contact with a step-child does not trigger a duty of support. 647 A, 240,242-3 (Pa. Super. 1994).
But here, step-father’s action to prevent mother’s relocation and his pursuit of shared legal and physical custody was enough to upset the general rule.
Noting that this case was analogous to L.S.K. v. H.A.N., 813 A.2d 872 and Fish v. Behers, 741 A.2d 721 (Pa. 1999) which dealt with facts giving rise to a form of equitable estoppel, Justice Baer writes that where a party assertively hold himself out as a child’s parent, that party may be held to the correlative duties of a parent. He notes that step-father in this case assumed and vigorously pursued parental duties in trying to halt the relocation and in pursuing shared custody.
As noted, this is not a bright line test. One can read the majority language in page 13 of the opinion as holding that a step-parent may cross the “support” line by invoking judicial remedies of any kind. Such an interpretation appears to be inconsistent with Drawbaugh. So finding the line where support may be due from a step-parent may not be easy but it seems clear from this case that stopping relocation and then securing shared custody is “enough.”
The opinion does also present a conundrum of sorts. The parties separated in 2009. Step-father filed for divorce in 2010. His complaint for custody was not filed until 2012. All we are offered about the period between the 2009 separation date and the 2012 filing date is that the parties “informally shared custody of the children.” We don’t know what that three year “sharing” involved in a physical sense and that prompts the question of how soon after a separation must a step-parent act to assert in loco parentis before he or she loses that status. Alternatively, what kind of sharing effectively “tolls” any temporal limitation? In an age when serial live in relationships without benefits of marriage are increasingly the “norm”, can Boyfriend 1 sue for custodial rights when mother and child now reside with Boyfriend 3.