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)

Superior Court appeals relating to child custody are supposed to be “fast tracked” in recognition of the fact that in the life of a child, a year is a long time.  But, a land speed record was attained on February 11 when the Superior Court affirmed a Montgomery County Common Pleas order entered less than four months earlier.  The ruling by Judges Panella and Olson with Senior Judge Fitzgerald offers some more insight into what appellate courts are asking trial courts accomplish when conducting trials in custody cases.

The key ruling of the case is procedural.  The trial was conducted in April, 2014. The judge ordered the parties to return the following day for the Court’s ruling.  The Court spoke at length (44 pages) analyzing the factors under the custody statute and then concluding with an oral Order based on that analysis.  The judge directed his ruling to be transcribed so that the Order portion of the transcript would function as the final order in the case.  When the child’s mother appealed the Court’s ruling the Trial Court held that its oral Order was not appealable since it was not recorded on the docket.  This created an issue in its own right because Pa. R.C.P. 1915.10(a)-(b) says, in part, that “The Trial Court shall state the reasons for its decision either on the record in open court, in a written opinion or in the order.”

The rule is ambiguous and the Superior Court clearly saw the problem. The “ruling” is 46 pages and at least 27 are identified as part of the order.  It includes exchanges with counsel where clarification is sought, including a colloquy directed to what nights Father will have if he can work his schedule out.  At one point in the transcript the trial judge candidly admits that his own order is somewhat confusing.  As the Superior Court recites, much of this colloquy is aspirational and far from definitive.  The three judge panel held that a case is not concluded until a written order is prepared and placed on the docket.  Analysis of the custody factors may invite a judicial soliloquy, but the Order itself needs to be quite clear as to who has what responsibilities and when.  To the point, there must be an “Order” docketed in contrast to a direction to make a transcript an order.  Parenthetically the Court notes that the sixteen factor analysis must be completed and, in some form, articulated before the appeal period lapses.  See C.B. v. J.B., 65 A.3d 946 (Pa. Super. 2013) app. den. 70 A. 3d 808 (Pa. 2013).

The ruling by Judge Jack Panella with Judge Fitzgerald approving is noteworthy.   A fundamental premise of appellate law is that an Order is not an Order until it is filed on the docket whether entered in open court on a transcript or in a written form by the judge.  Absent a bright line test, an order would be “entered” not based upon a judge’s signature but a court reporter’s filing of the transcript.   Litigators know that depending upon county and circumstances, a transcript may not see the docket in the Prothonotary’s office for weeks or months following a proceeding.   Judges are clear that when they send an Order to be docketed, parties and or counsel need to be notified.  The Court reporter is not under that same duty which can cause precious appeal periods to be abbreviated or lost.

While the Appellant/Mother’s position was sustained procedurally in the explicit ruling that custody “orders” need to be drafted by Judges and not uttered to court reporters, her case fell apart quickly after that.  Mother raised eleven issues on appeal.  However, with respect to eight of her issues, the Superior Court found that the brief did not develop these issues except to conclude that the Trial Court ignored the testimony and reached the wrong result.  Quoting from  Lackner v. Glosser¸ the panel states: [A]rguments …where the party has failed to cite any authority in support of a contention…” are waived. 892 A.2d 21,29-30 (Pa. Super. 2006).  See also Chapman-Rolle v. Rolle,  893 A.2d 770, 774 (Pa. Super, 2006).

Two smaller points merit consideration.  In this case, some custody was awarded to a non-party step-mother.  Mother objected but the trial court noted that during this time, neither parent was otherwise available to provide care.  The appellate court buttressed this by stating that the step mother was in loco parentis based upon 23 Pa. C.S. 5324.  Mother made an issue of step-mother’s ingestion of anti-anxiety medications.  But the Superior Court found that the issue of how this affected the child was not developed. Similarly, Mother complained that the child was not interviewed. The Trial Court responded that it assumed that had either parent thought the views of the seven year old merited consideration, they would have offered the child’s testimony.  The panel concludes that it was not the duty of the Court to insist on an interview of a seven year old.  Lastly, the court dealt with the age old bane of all trial lawyers and judges; Appellant said the Court failed to consider the evidence the Mother forgot to bring to the trial.  You can guess how that turned out.

The substantive lessons are worthy of note.  It appears a non-party can have partial custody without becoming a party.  This is not earth shattering because otherwise every day care provider in America would be made a party.  Second, bring your evidence to trial if you expect it to be considered. Don’t assume the Court will take it upon itself to interview a child, although this is a topic that seems to have authority going both ways (Court needs to make record versus parties have responsibility to make the record).  And perhaps most importantly, a brief needs to cite cases or at least segments of the record where the Appellant believes error has occurred. Without one if not both of those legs, there is no appeal to stand on.

 

In this most recent U.S. Supreme Court term, the Court has heard two cases involving the domestic relations of a state.  In addition to the arguments on same sex marriage, on April 16th, the Court also heard argument on the adoption of a three-year girl.  The law at issue is the Indian Child Welfare Act. 

The Act, passed in the 1970’s gives Indian tribes exclusive jurisdiction over any child custody proceeding involving a Native American child who resided or was domiciled on Native American land.  The Act was passed to address the removal of Native American children by public and private adoption agencies and it places priority on allowing the child to grow up in the traditions of their culture by allowing the tribe and the child’s relatives a say in the placement of the child.  What is unusual about this Act compared to most state’s custody laws is that is significantly broadens the class of individuals that have standing to raise issues about the adoption.  Most states limit standing to the biological parents and, under some laws, the grandparents of the child.

 

The Indian Child Welfare Act, in this instance, was applied to overturn the adoption of a girl by a South Carolina couple.  The girl, now three years old, was returned to her biological father in Oklahoma, a member of the Cherokee Nation, after he sought to overturn the adoption based on the natural mother’s failure to obtain his consent.  The case made its way through the entirety of the South Carolina legal system and sided with the natural father on the basis of the Act, despite identifying the adopting parents as “ideal parents” – small comfort to them, no doubt.

 

The adoptive couple’s appeal is based on two questions:

 

(1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law, and;

(2) Whether ICWA defines "parent" in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

 

The second question is interesting due to the case law in various states as to whether or not unwed biological fathers have the same decree of protections as mothers.  In Pennsylvania, any adoption requires the voluntary or involuntary termination of both biological parents’ rights, and both parents are protected under Pennsylvania’s child custody law; marital status is irrelevant and updates to the custody statute made it (parental) gender neutral.  This does not presume that complications can occur in instances where paternity is not established, but generally, adoptions in Pennsylvania require notice of an attempt to terminate parental rights and afford the biological parents the opportunity to contest the termination.

 

The Supreme Court’s decision in this case may result in the clarifications to existing law as to the definition of “parent” under the Act and the extend of the scope the Act has for addressing the adoption of Native American children where the proceeding otherwise satisfied prevailing state law.  The Act, as a Federal statute, would preempt the laws of the states where the adoption occurred so ultimately the Supreme Court will render a decision fairly narrow in scope as to whether the Act applies to this adoption and, if so, the overturn of the South Carolina adoption would be upheld.

 

It is worth remembering that nuanced, debated legal issues impact the actual lives of people.  The parents that raised this child from infancy until she was three were abruptly taken from this child’s life; the father of the child may never have known the mother put his daughter up for adoption and is now trying to forge a relationship with the child.  Whatever the Court’s decision, one side will be bitterly disappointed and likely never to see this child again.