Take a friendly lawyer to your local watering hole and ask him for a quick summary of annoying things that have occurred in the practice in the past 20 years.  Chances are two strong subjects will come up.  The first is the decision about two decades ago by the Superior Court and Commonwealth Court to issue non-precedential opinions.  In common parlance the opinions are called “non-published”, but truth is that they are published and you can read them but the court adopted a rule that they had no precedential value and could not be cited as authority, even though they were dispositive in the case decided.

Last year the Superior Court disposed of roughly 8,000 cases, but less than 400 had a precedential opinion.  Many of the other 7,600 decided some important legal matters, matters where precedent would be helpful, but the volume of decisions made the court nervous that it was issuing “precedent” where the three judges involved did not have the time or resources to consider the implications of a precedential opinion.

For the past several years the bar has been lobbying that the rule was too restrictive. Non-precedential cases should be worthy of citation and if the law was wrong or the precedent should be regarded as unique because of the facts, let the next team of lawyers fight over that when briefs and oral argument take place in their case.  In other words, the case is not binding as a matter of law but it should be influential unless the subsequent appellate litigants showed it should not be.

The fight ended with a victory of sorts for the common law.  The Supreme Court ordered that unpublished decisions decided as of May 1, 2019 may be cited in briefs and arguments but do not have the weight of stare decisis.  Decisions before May remain verboten but at least the door of precedent has been unlocked for the future.

Oh, and that second complaint that is driving the common lawyer to drink.  Client anonymity. Try standing in front of a mirror, let alone an appellate panel of judges and saying, “Your honors, K.M. versus J.M. is an unwarranted expansion of the ruling in K.K. versus K.L. and is in direct contravention of this Court’s en banc ruling in J.C. v. K.C.  If K.M. is allowed to become law, J.C. is effectively overruled.” All of this because of an ersatz fear that the children of these folks will be scarred should their names appear in published law reports.  Last year Facebook reported 2.3 billion users.  There are only 7.7 billion people on the planet.  May I suggest that judicial efforts to preserve anonymity in legal cases is but a speck in an ocean cluttered with people who can’t wait to share what they are up to and just how badly their ex-spouse or boyfriend treats the kids.

At the risk of appearing obsessed, I write a second time about the separation of Jeff and Makenzie Bezos. This time my subject is again borrowed from the Wall Street Journal, but it’s not about the money. Rather, the Journal produced a prominent and adulatory article about the divorce announcement by the couple (actually Jeff) on Twitter. I thought it interesting because anyone who separates from a spouse or long time relationship is left asking; how do I let people know?

In olden days, this was done either by phone or in person. It creates an awkward moment because if you are the person getting the news, you are not certain just how to react. After the “I’m sorry to hear that….” the question becomes how far does the inquiry go? It seems cold to stop with the vague “I hope it works out.” Yet, is the person making the announcement asking for absolution? Therapy?  There is no happy answer.

So, I think there is merit to a public announcement and despite my general abhorrence of Twitter, I see benefit in getting the word out. I don’t know whether it requires a “joint” announcement as the Bezos posting suggested. For most of us, separation does not suggest that we need to “calm the market” in Amazon stock. However, the many lawyers and therapists who commented upon the Bezos announcement liked the idea of controlling the message and communicating that the problems either have been or will be handled with civility.

If you read what was posted by Mr. Bezos, it was a bit treacly.  In part, it says:

“After a period of loving exploration and trial separation, we have decided to divorce and continue our shared lives as friends.”

Perhaps this was all so amicable, but the news was immediately accompanied by reports that Herr Bezos already has a girlfriend.  It also throws shade on the ambiguous phrase “loving exploration.”  But, back to the main point… People want to know if you are separating.  If they truly care about you, they would like to know things will be civil even if that is merely an aspiration. It is also a good way to signal to your spouse how you want him or her to respond. The beauty of the electronic approach is that it gets the word out and allows friends to control a responsive dialogue on their own terms.

I don’t do Twitter because I have witnessed a thousand prominent people see their public persona crash and burn. They did not think before they wrote. Twitter is best known as a place where people say stupid things.  But perhaps Twitter might actually become an instrument of civility rather than a semantic battleground.

What to say? Well it may be ideal to issue a joint announcement. It is rare for couples to be finished with each other at the same time.  Usually, one spouse is the catalyst. If that is your situation, keep it simple and avoid what will be perceived as over the top sentimentality.

“I wanted to let friends and family know that (Jeff ) and I are separating.  I am hopeful that this process will preserve our dignity and not draw you into a conflict where you will feel the need or desire to take a side.  I hope our friends will remain just that although we may no longer be a couple.”

Message sent.  Now, when you run into the neighbor in the frozen food aisle, they “know” and can ask either how it’s going or confine the conversation to whether chicken Florentine is good with arugula.  The recipients also know that you want to be an adult during the process.

So am I on the road to conversion as a Twitter acolyte? Perhaps. But then there is the recurring fear that if I joined the social media band no one would “follow.”

While writing about high profile divorces is a means of attracting readers, it really leaves most of us feeling “empty” when it comes to how it relates to our ordinary lives. But the announcement this week of the divorce agreement between Jeff and MacKenzie Bezos made the front page of the Wall Street Journal. There is a reason for this. Unlike the split of say P. Diddy and Cassandra Ventura announced in October, the Bezos divorce actually could affect our lives if we own anything besides a token piece of Amazon. Can that be? NBC announced the story Wednesday morning just as markets opened. Stock price then $1,656. It closed the day at $1659. But when markets opened this morning (1/10), they did so at $1,640. We don’t know what causes these variations but the Bezos divorce was front page of today’s major news outlets.

Why would anyone care? Mr. Diddy is estimated to be worth almost a billion dollars. What composes that billion is unknown to us. But Jeff Bezos is worth $150 billion and the far biggest piece of that is 16% of all Amazon stock, about 79,000,000 shares. If $150 billion is an accurate estimate and $130 billion of it is in AMZN stock, a lot of that stock is in play in the divorce process.

This was a long-term marriage (25 years) in an equitable distribution state. The latter phrase means that Mackenzie does not automatically get 50% as she would in a community property state. But, this transaction was most likely not: “you take the house(s) and the cars, I’ll keep my stock.” Lots of ink has been spilled in the Jack Welch and Frank McCourt divorces about what a non-entrepreneur spouse should get. But even if Ms. Bezos took only 30-40% of the marital estate and kept the house and 401(K), she is still going to walk away with a piece of Amazon that would rival those held by Vanguard and Blackrock. Vanguard and Blackrock represent hundreds of thousands of investors. Mackenzie Bezos is a party of one. As one of the tiny pieces of Vanguard, I bought knowing that Bezos was the lead dog and that lead dogs understand the responsibilities of owning 16% of the entire kennel. But all I know about Ms. Bezos is that she is a novelist who married her husband when Amazon was still a book distributor and that today she may have the power to put stock to the market in some ways that could create dangerous volatility for those of us with smaller stakes. If there is a consolation for the small investor, it is that the Bezos’ appear to live in Medina Washington where community property presumptions of 50/50 don’t apply. Then again, the Bezos do have homes in a couple of community property states so their real residence state may be not what we think. A community property state could signal a $75 billion dollar settlement and a larger piece of Amazon.

So what has this to do with mere mortals? The answer is liquidity. We commonly see business entrepreneurs or their spouses in a world where 70-90% of their wealth is enmeshed in a closely held business. They are divorced as commonly as anyone else is but they typically ignore the liquidity crisis which divorce can trigger. Folks like Bezos have some relief from this particular headache. Their stock is public and can be sold. But ask any senior executive in a publicly traded company how much freedom public securities offer them and they will respond: damn little. There are blackout periods when they cannot trade and every time they do, the investor community is combing the SEC records to see who sold and wonder why stock was sold unless the sky was ready to fall.

You don’t have to be a Bezos to have this problem. Every day we insure houses and their contents based upon an unlikely casualty contingency. In so doing we anticipate and hedge against a remote possibility. We do the same with both life and disability insurance policies. But few of us ever look at our own portfolio of assets and ask; what if my spouse announced “Game over.”  It is not a pleasant thing to think about. But chances of a house fire are pegged at about 1:3000. The number of divorces in the United States exceed the number of house fires by 2:1.

Most people reading this will dismiss it. “I’m not getting divorced.” Those deniers seem to think that they are the only spouse who could be unhappy in their marriage. So why diversity and attempt to arrange the balance sheet so that illiquid assets are a smaller piece of the portfolio. There is actually a second reason. It is reflected in the Greek tragedy called “Theranos” where a $10 billion dollar valuation in 2015 turned into criminal indictments of management three years later. Enron was $92 a share in 2000 and half that price a year later. GE lost half its market capitalization between June 2017 and the same time this year. It has declined another third since then. So there are many reasons to accept the bromide that there can be too much of a good thing. Even if you are a Bezos and even if you have 200 shares in your retirement plan.

Holidays are supposed to be a time of merriment and conviviality.  Experience has taught us that they are also a time of immense stress.  This is especially true where families are no longer intact.  Families bring with them a sense of “expectation” and holidays are full of rituals, whether it be the Thanksgiving family football game in the backyard or the Feast of the Seven Fishes at Christmas.  Your families expect you to be there and to be there in the company of your kids.

Sometimes scheduling doesn’t work so well, either by accident or design.  The annual Feast of the Seven Fishes is Christmas Eve and most divorced families alternate that evening so the children may miss it every other year.  So, there is your family on Christmas Eve asking you about the whereabouts of your kids for the important family event while your ex is at their house with the kids doing nothing except eating pizza and watching Toy Story for the hundredth time.

In olden days, which is to say before cell phones and electronic mail, you might have given thought to calling the ex and telling them just how selfish and stupid it was that the children were missing a special family event with grandparents and cousins.  But, chances are you didn’t make that call because that was going to be unpleasant at best.  Today, however, you have a new stealth missile in your communications arsenal. You can send a blazing email or text expressing every dark thought your mind can conjure, hit send and instantly turn the device off knowing that the missile will hit its target.

Don’t.  It is a temporary feel good moment for you but one which creates a permanent record of your anger and leaves collateral damage that affects the kids watching Toy Story and the co-parent from whom you will need a favor sooner or later.  Indeed, you are probably right that Fishes with Family should trump Toy Story, but all you are really doing is making your kids feel bad at a time of the year when the real goal is to spend time feeling good.

Montgomery County is making major revisions to its custody procedure, including an overhaul of the “Our Children First” parenting seminar. This seminar is a requirement under Local Rule of Civil Procedure 1915.3* and mandatory for parties in custody cases. Effective today, the Court has temporarily suspended that Local Rule and the Court Administrator’s Office will refund registrations fees to anyone who is currently registered for the program and will not be accept registrations pending further Order of Court reinstating the rule.

Montgomery County’s new procedure becomes effective January 1, 2019, so I anticipate this month being used to enact the changes to the Seminar envisioned by the Court, including the installation of Krystiane (Krys) Cooper (MSW, LCSW, RPT-S) as the new director of the program, and that the Local Rule will be reinstated at some point in January.

Though the point of this blog is to talk about recent developments in the area of family law, we would be bereft if we didn’t take a moment to recognize the life of U.S. District Judge Joseph L. Tauro of the District of Massachusetts. He passed away on Friday at 87 years old.

Judge Tauro presided over two cases attacking the federal Defense of Marriage Act. After finding that DOMA compelled Massachusetts to discriminate against its citizens in order to receive federal funding, and that it was the state’s right to recognize same-sex marriages and afford such couples any rights and benefits derived from that marital status. Judge Tauro’s decision was affirmed by the First Circuit Court of Appeals. The Supreme Court declined to take the case after the decision of U.S. v. Windsor struck down Section 3 of the Defense of Marriage Act defining marriage as between a man and a woman. Judge Tauro’s decision in 2010 could be seen as the first of what became a wave of successful legal challenges to DOMA and, ultimately, legalized same-sex marriage.

The attack on DOMA was not his only major case over his 41 year career beginning with his appointment by President Richard Nixon. Other notable cases include his handling of a class action law suit leading to major reforms in Massachusetts institutional case for developmentally disabled people, as well as his facilitating a settlement involving systemic discrimination in Boston’s public housing system. He had a significant influence on the law through his decisions and the impact those who worked for him and with him.

 

After a five-year hiatus due to a ruling that effectively undercut the viability of custody coordination, the Pennsylvania Supreme Court has reintroduced custody coordination by Rule effective March 1, 2019. In the intervening five years, the Supreme Court (who promulgates the rules) in conjunction with the Domestic Relations Procedural Rules Committee (of which Judge Daniel Clifford from Montgomery County is a member) have painstakingly reconstituted the custody coordination rules to rectify the fatal due process flaws found in the system by the Superior Court in A.H. v. C.M., (Pa. Super. 2012).

Since the announcement in August, counties across the Commonwealth should have their local rules underway and beginning to certify – or at least identify their certification processes – attorneys and, under the new rule, mental health professionals, as custody coordinators.

Last September, I laid out the new rules in detail for The Legal Intelligencer and identified how this new system stands to benefit families in Pennsylvania by rerouting some issues out of the court system and into the coordination system. When coordination was abolished, it is fair to generalize that it was not because attorneys or parties did not see value in it. Under the new rule, the utility of custody coordination returns, but with a procedural support system that should allow it to be sustainable as an alternative dispute resolution tool.

You can also find my analysis here.

 

She was 21 and a college student. Anyone who recalls being 21 will also recall that it is an age of experimentation. Today she is dead, murdered by a person whom she dated for a month. Her killer was a 37-year-old man with a long criminal history of sexual abuse. It seems that toward the end she figured this out and sought help from law enforcement. However, where the relationship has a consensual element, it is difficult for law enforcement and the judiciary to figure out where and how the consent ended.

Ours is an age where relationships are often formed electronically. As divorce lawyers we encounter a fair number of people who engage in that medium and many are happy with the results. But we also know that people online are not afraid to portray themselves as a little or a lot different than the humans they really are. It appears that Lauren McCluskey’s killer, Melvin Rowland, presented himself as someone quite different than his history later revealed.

How do you protect yourself or your loved ones from themselves? There is actually help and it is an online resource. Pennsylvania has an online system by which anyone can examine the criminal record of another state resident. It’s not the easiest thing to navigate, but it can be done. The other challenge is that you do need some accurate information about the person you want to know about.

Go to The Unified Judicial System of Pennsylvania Web Portal at https://ujsportal.pacourts.us/CaseInformation.aspx. In the blue banner at the top you will see “Case Information”. There is a drop down menu for Court Case. This leads to another drop down that identifies four different courts where criminal matters are decided. Serious criminal charges, the kind for which Melvin Rowland had been convicted are handled in the Court of Common Pleas. Minor criminal matters (known as summary offenses) are handled in Magistrate Courts. In Philadelphia, it is called Municipal Court. But serious crimes, crimes defined as misdemeanors and felonies, these will be found in the Common Pleas site.

Once you open that Common Pleas page, it offers a page called Common Pleas Court Docket Sheets. Tab down and you will see a reference to Search Type. Click on the drop down arrow and select Participant Name. You will be prompted to fill in three items, Last Name, First Name, Date of Birth. You don’t have to have a date of birth to do the search, but if the name you are searching is a common one, realize that you may find a dangerous history related to someone you have misidentified. We’ll revisit that in a moment.  Once you have the First and Last Names filled in scroll down to the Docket Type category and using the drop down arrow select Criminal and hit the Search button. Any matching criteria will be displayed at the bottom of the page.

If there is a history it will displayed at the bottom of the page as what is called a Short Caption that says Comm. v. Last Name. Note the case status. “Active” means that the case is still pending and criminal charges have not been disposed either by trial or plea. A “Closed” file is one where the case has been disposed of. That would mean a guilty plea, a conviction, a finding of not guilty or nolle pros (dismissal of the case without conviction). Before going any further, look out on the far right and you will see the birth date of the person charged. That may give you a clue when the person you are looking for has a common name. You may not know the date of birth, but this data will at least give you an indication of the age of the person charged.

Now hover on the icon on the far left and a drop down box offers “Docket Sheet” or “Court Summary”. You will want to look at both. The Docket Sheet will show you the date of arrest, the place where the arrest was made and a recitation of all charges. Realize that law enforcement is often known to “overcharge” as a means to get the defendant to admit to some charges. Understand as well that some crimes are pregnant with hysteria such as “terroristic threats.” The dockets will show the history of the charges. It is common for many to be dropped, often in exchange for pleas of guilt on other charges. In a word, these cases are negotiated far more often then they are tried. Unfortunately, you won’t see online the facts or incident giving rise to the charges. You will also see references to a “Grade”. M is for misdemeanor; a serious offense for which a person can face up to a year in the county jail. F is for felony which is a crime involving a sentence of more than a year in a state prison. S is for summary. These are petty offenses but still reflect either willful misbehavior or a person’s incapacity to regulate their behavior.

So, let us assume that you go to all of this trouble. These are the official criminal dockets maintained by the courts in Pennsylvania. The database for Pennsylvania does not include federal crimes or crimes committed outside of Pennsylvania. Another resource that can be quite helpful is The Dru Sjodin National Sex Offender Public Website, which is a national database of convicted sex offenders.

As we all know, there are both laws to protect us and people employed to enforce them. But, self-protection can be far more effective. They can be wrong, but is that a chance you want to take? Perhaps your special someone has been wrongfully charged and those charges will ultimately be dismissed, or the person acquitted. It does happen and not infrequently. Are you willing to bet your safety on being right? If the charges involve controlled substances, you may be dealing with addiction issues that place you in physical danger.

One thing this writer will bet on. Had a 21 year old University of Utah student had knowledge of these kinds of tools available and made use of them, she could have found out that Mr. Rowland had been guilty in 2004 of sex crimes involving children ages 13 and 17. Armed with that knowledge, the outcome in this story may have been different.

Just before Christmas last year, Congress passed and the President signed a major tax reform package that contained a surprising wrinkle.  It abandoned a decades long provision that permitted payors of alimony or spousal support to deduct their payments from income and required recipients to report the payments and pay tax on them.

The effective date of this change was/is December 31, 2018.  Orders and Agreements in effect on that date maintain the old tax treatment.  Still taxable to payee.  Still deductible by payor.  But Orders and Agreements formed in 2019 will be tax neutral unless the deal is a modification of a pre-2019 instrument (i.e. Agreement or Order), and it expressly retains the former tax treatment.  To address this, Pennsylvania support guidelines needed to adopt amendments to deal with two systems: one where the payments are taxable and one where they are not.

When the Pennsylvania Supreme Court Rules Committee began their review, they observed that every other state approaches child and spousal awards differently.  In Pennsylvania we have always calculated child support first and then used that result to calculate spousal and alimony awards.  The Rules Committee is recommending that we adopt a different approach.  Under proposed rules currently out for comment, we will solve first the issue of spousal support/alimony and then plug the results into a child support calculation.  If there is an Order in effect before December 31, 2018 the calculation does not change.  If the obligor makes $5,000 a month net and the obligee $2,000, you subtract the lesser number from the greater and start with the $3,000 result.  If there will be child support due, the spousal award is 30% of the difference or $900.  If no child support is involved the percentage remains 40 and the result is $1,200.  Both payments will remain taxable and deductible.

But, if the case involves a new Order or the parties should decide they want an Order to be reflective of the Trump tax reforms, the calculation becomes a little more complex.  Here we go; dealing first with a case where child support is not involved:

Obligors net monthly income $5,000
Less payments due to other families  
Adjusted net income available for support $5,000
x .33 $1,650 (this is new)
Obligee’s net monthly income $2,000
x .40 $800 (also new)
Subtract the $800 from the $1,650 and nontaxable support will be $850.  This contrasts with $1,200 taxable/deductible under the ancien regime.

Now, on to a case with the same incomes but a child support element:

Obligors net monthly income $5,000
Less payments due to other families  
Adjusted net income available for support $5,000
x .25 $1250 (this is new and a lower % than above)
Obligee’s net monthly income $2,000
x .30 $600 (also new, also lower % than above)
Subtract the $600 from the $1,250 and you get spousal support or alimony of $650.

These results will now become part of the child support calculation. The spousal award will be subtracted from obligor’s income and added to obligee’s.

  OBLIGOR OBLIGEE
Net incomes available for support 5,000 2,000
Spousal support/apl adjustment (650) +650
Adjusted income available 4,350 2,650
Combined income for support $7,000    
Relative percentages 62% 38%
Guideline amount 2 children 1,660    
Support 1,029 631
If the obligor has 45% of overnights the support is adjusted with a 15 basis point discount to 47%.
Then we allocate health insurance, private education, and activities (w/o discount)            62% Obligor and 38% Obligee.

These are recommendations to the Supreme Court and they are not yet law.  But, given the fact that the federal tax law will change in less than ninety (90) days and something must be done in that period, don’t be surprised to see the proposed regulations adopted at least as a temporary matter.

 

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)