GAY EQUALITY IN CUSTODY CASES CONFIRMED AS PENNSYLVANIA LAW

Posted on February 8, 2010 by Mark Ashton

Over the course of the past generation, our society has begun to recognize that sexual orientation has nothing to do with a person’s merit as a worker, a parent, or a human being, in general. It is an orientation rather than an aberration, yet our courts do not have the power to create cases or to promulgate laws based on their perception of need for change. Law is developed from the cases or controversies involving real people with existing legal issues.

 So it is that as recently as 1985 the Superior Court ruled that a parent’s homosexual relationship reflected a “moral deficiency” that a Court must consider as an adverse factor in a custody case. That case, Constant A. v. Paul C.A., (496 A.2d 1 (Pa. Super. Ct. 1985) stood unchallenged for twenty-five years until a recent decision by the Superior Court. The facts of the case are as follows:

In 2006 a mother informed her husband that she was involved in a same sex relationship with another woman. The mother filed for divorce and shared custody in Dauphin County. Her husband replied by filing for primary custody of the child. A judge heard the case and ordered a shared custody arrangement for 18 months after which the child would live primarily in the custody of the father. The mother waited out the 18 month transition period and then filed for modification asking for preservation of the status quo. The mother also presented expert testimony that the shared physical arrangement was working. When the trial court rejected the modification request and relied upon the 1985 Constant A. v. Paul C.A. decision considering a same sex relationship as a “negative”, the Mother appealed.

 In deciding this case, known as M.A.T. v. G.S.T, the Superior Court heard this case en banc. Ordinarily appeals are heard by panels of three appellate judges. Only in compelling cases (as decided by the Superior Court) are matters heard by panels of nine judges. The premise is that the Court wants the legal community and the public at large to understand that it is intent upon establishing lasting precedent.

The trial court’s opinion in M.A.T. v. G.S.T., it should be noted, found both parents to be fit and interested. It also noted, however, that the Mother did not overcome the principle that a same sex relationship must be harmful to the best interests of the child.

The Superior Court ruled that this doctrine no longer squared with Supreme Court rulings that each custody cases must be decided upon its facts and that each parent has the same burden of showing what is in a child’s best interest. Language that dismissed same sex relationships as “illicit” was dismissed as antiquated. The Court also recited language from its own 1982 decision in Custody of Temos where the Court noted that prejudice against interracial relationships had no place in a custody determination. There as here, the decision in a custody case must turn upon parenting quality in contrast to public perception of whether a particular environment was normal or accepted.

The decision in MAT v. GST was published on January 21. Any appeal to the Supreme Court must be filed within thirty days.

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THE WAIT IS OVER:EXPEDITED APPEALS PROCESS FOR CASES INVOLVING CHILDREN

Posted on March 3, 2009 by Julia Swain

Appeals to the Pennsylvania Superior Court and the Pennsylvania Supreme Court can delay the final disposition of a matter for well over a year or more beyond a trial court’s decision. While the effect of such a delay upon economic determinations can be dealt with through readjusting financial awards, the effect upon children can have significant, long term implications, particularly where custody of a child is transferred from one parent/guardian to another.

In an effort to expedite appeals involving children, effective March 16, 2009, the Pennsylvania Superior Court will implement new appellate rules governing custody, adoption, termination of parental rights, paternity, and dependency cases. The new rules will be known as the Children’s Fast Track (CFT). Although support cases will not be affected by the new rules, it will be within the discretion of the Superior Court’s Central Legal Staff to submit some limited support matters to the CFT.

 

The new rules are the result of the Superior Court’s efforts to eliminate unnecessary delay in the appellate process for cases involving children and provide an even more expedited process than the current Family Fast Track procedures. The new rules will only apply to those appeals filed after the effective date. Cases already pending will proceed under the existing Family Fast Track.

 

Filing deadlines have been significantly decreased or eliminated. Under the new rules, the concise statement of errors complained of on appeal must be filed simultaneously with the Notice of Appeal. The Notice must state that it is a Children's Fast Track Appeal. Practitioners are no longer required to wait for the trial court judge to issue a 1925(b) order requiring the filing of the statement.

In order to allow the trial court to file its opinion sooner, the trial court no longer is required to cite to the transcript, or set forth a detailed opinion. The trial court is expected simply to set forth its reasons for the decision.

 

Any dispositive motions must be filed within 10 days of the opinion, or the filing of the 1925(b) statement of errors complained of on appeal, whichever occurs later. All brief covers and petitions for allowance of appeal must have the proper CFT designation if the case qualifies. Opting out of the CFT designation is not possible.

 

The brief scheduling is abbreviated. Instead of 40 days, appellant has 30 days to file a brief. Appellee now has only 21 days, not 30; and, the reply brief must be filed within 7 days, shortened from the previous 14 day time period.

 

Additional changes are incorporated into the Rules that are not specifically reference in this article. A copy of the full text of the new rules is available www.courts.state.pa.us.

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