Two years ago the Pennsylvania Supreme Court weighed in on the matter of how third party standing was consistent with the fundamental right of parents to raise their children. That case moved the ball in a new direction as we had seen a trend favoring third party involvement in child custody litigation where “interest” was shown. On September 21, the Supreme Court issued a decision underscoring the definition of a parent and further articulating who can qualify as in loco parentis.
C.G. was in a same sex relationship with J.H. in Florida when J.H. decided to have a child using intrauterine insemination via anonymous male. The child was born in Florida in 2006. In 2012 J.H. took the child and established a separate residence first in Florida and a few months later in Pennsylvania.
Four years later, C.G. filed an action in Pennsylvania seeking partial custody. This was met with preliminary objections asserting lack of standing. The adult couple never formalized their relationship and no adoption had been begun even though Florida legalized same sex adoption in 2010.
The evidence about the relationship between C.G. and the child born to J.H. was unusual. As one might expect C.G. presented herself and supporting witnesses to promote the idea that she was part of the choice to have the child and a hands-on caregiver from the day delivery. But, once the adult relationship cooled, contact between C.G. and the child was once per week. After J.H. moved with the child to Pennsylvania C.G. saw the child only once in March, 2014 and didn’t phone her too often. C.G.’s financial contributions to the child seemed to be limited to occasional gifts and some camp tuition. C.G. did name the child as a beneficiary of an insurance policy on her life.
The opinion of Justice Sallie Mundy notes that the resolution of the preliminary objections involved testimony from sixteen witnesses and exhibits ranging from school parent forms to thank you notes following J.H.’s baby shower. This evidence was heavy in hope and expectation and remarkably light in terms of actual goods and services associated with parenting. Nonetheless, C.G. asserted that she was a parent under Section 5324(1) or “at the very least” a person in loco parentis. 23 Pa.C.S. 5324(2).
The Trial Court ruled that C.G. lacked standing. The disputed testimony aside, the Court noted no reference to C.G. on the birth certificate; no reference to C.G. in the child’s name and no action to begin a second parent adoption once Florida permitted such proceedings. The life insurance policy and the presence of the child on C.G.’s health insurance until the J.H. relationship ended was all of the documentary evidence the Court could find, and it credited J.H.’s testimony that she was responsible for almost every child-related decision concerning things like medical care, day care and other needs. C.G. did pay her share of household expenses while the two resided together but that appears to have been the extent of contribution aside from health coverage. The court stayed away from “bonding” issues noting that standing is an objective standard where bonding is not. See K.C. v. L.A. 128 A.3d 774,779 (Pa. 2015).
The Superior Court affirmed based on the absence that C.G. showed no law was advanced establishing that a non-biological, non-adoptive former partner can be a parent. C.G. v. J.H. 172 A.3d 43, 51-52 (2017). As for the in loco parentis claim the Superior Court deferred to the trial court findings of fact.
Justice Mundy’s opinion properly begins with the requirement of standing in all cases; “a substantial, direct and immediate interest” in the subject matter. It also noted that in custody matters, the goal is to protect families from intrusions by even well-meaning strangers.
C.G. advanced what is called an “intent based” approach to the role of parent. This Court notes that law does not yet define who is a parent but that the accepted definition is a status conferred by either biology or adoption. It also noted that the recent In re Baby S case also suggests that the status of parent can be expressed or implied by agreement. 128 A.3d 296 (Pa.S. 2015); See also J.F. v. D.B. 897 A.2d 1261 (Pa.Super. 2006). But here, the Plaintiff had none of these requisites. If C.G. was not a party to a parenting agreement or otherwise identified as an intended parent during the conception and birth process, she is not a parent under Pennsylvania law. Pennsylvania does not adopt the Massachusetts approach that allows parentage to be established by professing to be a parent. Interestingly, Justices Wecht, Dougherty and Donohue appear to be more open to this concept although they did not find that C.G. met the “professed parent” standard. The interplay between that view and conduct that is in loco parentis is an interesting topic.
On the claim of standing in loco parentis, the Court noted the twin requirements of “assumption of parental status” and “discharge of parental duties.” C.G. advanced a case, T.B. v. L.R.M. 786 A.2d 916 arising from an agreement to have a child together with one parent choosing the sperm donor and subsequent sharing of all physical responsibilities. The Supremes found T.B. to show a much higher level of involvement with the child than what the trial court observed in this case. It also distinguished C.G.’s claims from those in J.A.L. v. E.P.H. another same sex case with facts similar to T.B. 682 A.2d 1314 (Pa. Super. 1996). In both of those cases there was a documentary trail of medical authorizations, standby guardian documents and the like evincing a desire to raise a child together. This desire was borne out by what occurred in terms of consistent contact after the adult relationship dissolved. The critical issue is what occurs before a separation occurs, but while the Supreme Court notes that post separation conduct should not control a claim to be in loco parentis, that conduct may shed light upon claims of a person to have assumed rights and discharged duties while the relationship was intact. Here the post separation conduct seems reflective of what occurred when C.G. and J. H. were living together but C.G.’s asserted parenting role seemed passive at best.
As I read the analysis in C.G. v. J.H. it became clear that this is an area where we need clear standards, either by statute or rule. The Centre County judge who heard this case listened to 16 witnesses while deciding not a custody placement but “preliminary objections”. One has to wonder why it took C.G. almost four years to assert parental rights. But, she waited almost as long to see whether she was even a real party in interest.
We live in a world where the birth or adoption of every child is documented. When a person claims the role of parent, whether by biology or contract, that person must register such a claim if he or she is not named on the vital statistics form as a condition to assertion of “parentage.” And, shouldn’t someone claiming to be acting in loco parentis be statutorily required to show that their assumptions of duty and discharge of obligations has been continuous and recent as part of a pleading to intervene? We devote lots of ink to the subject of child best interests. Yet, one of those interests should be avoidance of protracted and acrimonious custody litigation. In many instances that cannot be avoided. But, where a child left one state and was relocated to another, only to see the loco parente once in four years, should that child be subjected to the kind of litigation this case involve. He/she was five when C.G. exited from daily existence. That child is now twelve and probably wondering whether custody litigation with a person they can scarcely recall will remain a part of daily life. C.G. v. J.H., 2 M.A.P. 2018 (Sept. 21. 2018)