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Home > Same-Sex Marriage and Custody Rights: In Loco Parentis Standing In Pennsylvania

Same-Sex Marriage and Custody Rights: In Loco Parentis Standing In Pennsylvania

By Ashley B. Stitzer, Esquire

In the recent decision of A.J.B. v. A.G.B., 2018 Pa. Super. 50 (Mar. 7, 2018), the Pennsylvania Superior Court addressed whether an ex-spouse of a same-sex marriage, who was not the biological parent of a child born during the marriage, had in loco parentis standing to pursue custody of the child.  Although the Superior Court addressed the similar issue of whether a former partner stood in loco parentis with the mother’s child conferring standing to seek custody in the recent decision of C.G. v. J.H., 172 A.3d 43 (Pa. Super. 2017), the Superior Court reached a different result based on distinguishing facts in the cases.

The A.J.B. v. A.G.B. appeal rose from two cases that were consolidated by the trial court for a hearing.  The first case was a divorce action between A.J.B. (“Mother”) and her ex-wife, A.M.B. (“Ex-Wife”) in which a consent order for custody was entered providing shared custody of the child.  Mother and D.K. (“Father”) each filed a motion seeking to vacate the consent order for custody.  In the second case, Father filed a custody complaint against Mother and Ex-Wife.  Mother filed a motion seeking to strike Ex-Wife as a co-defendant in the custody case for lack of standing.  After a hearing, the trial court granted Father’s motion to vacate the consent order and granted Mother’s motion to strike Ex-Wife as a defendant based on lack of standing. Ex-Wife appealed arguing, among other things, that the trial court erred in finding that she did not stand in loco parentis to the child to pursue custody.

The Superior Court vacated the trial court’s order as it relates to Ex-Wife’s standing in loco parentis to the child to provide her standing as a party in the custody action.  Under Pennsylvania law, a third party has standing to assert a claim for custody if they stand in loco parentis to the child.  A person stands in loco parentis with respect to a child when he or she assumes the obligations incident to the parental relationship without going through the formality of a legal adoption.  The status of in loco parentis embodies two ideas; first, the assumption of a parental status, and, second, the discharge of parental duties.  In loco parentis status cannot be achieved without the consent and knowledge of the parent or in defiance of the natural parents’ wishes and the parent-child relationship.

The Superior Court found that Ex-Wife stood in loco parentis to the child based on the facts of the case.  Ex-Wife participated in the pregnancy and preparations prior to the child’s birth, as well as the child’s birth.  Mother and Ex-Wife were married at the time of the child’s birth and had intended to jointly raise the child together in a happy marriage.  Mother and Ex-Wife were both listed on the birth certificate as parents.  Ex-Wife chose child’s first name and Mother and Ex-Wife jointly selected child’s middle name.  Ex-Wife was the sole source of financial support for Mother and the child while Mother was on maternity leave.  From the child’s birth until December 16, 2015, Mother and Ex-Wife shared day-to-day childcare duties.  After the parties’ separation, approximately five to six weeks after the child’s birth, Ex-Wife continued to reside at the home and perform routine parenting duties for the child.  After Ex-Wife moved out of the home in April of 2016, she continued to see the child on Wednesdays and every weekend by agreement.  On August 12, 2016, Mother filed for divorce and shortly thereafter, Mother and Ex-Wife agreed to the Consent Order for Custody.  Ex-Wife attended to the child’s day-to-day needs during her custodial periods and attended the child’s doctor appointments with Mother.  Ex–Wife held herself out as the child’s mother and the child calls her “Mommy.”

The Superior Court distinguished A.J.B. v. A.G.B. from its holding in C.G. v. J.H., a case recently granted allowance for appeal to the Pennsylvania Supreme Court.  In C.G. v. J.H., the Superior Court affirmed the trial court’s determination that a former same-sex partner did not stand in loco parentis.  Although the child was conceived during the parties’ relationship and the parties lived together with the child for over five years, the lower court credited testimony that C.G. never agreed to have a child and merely tolerated the idea of J.H. having a child.  C.G. did not participate in educational or medical decisions regarding the child.  C.G. was not intended to be the child’s guardian if something happened to J.H. and acted more like a babysitter than a parent.  No formal documents existed indicating a co-parenting arrangement with the child, the child did not bear C.G.’s surname, and C.G. did not visit the child frequently and regularly after the parties separated.

The Superior Court also distinguished cases involving prospective adoptive parents, noting that the instant case involved Mother attempt in hindsight to expunge Ex-Wife’s relationship with the child, which was created and fostered by Mother prior to the child’s birth and continued by Mother for approximately a year and a half after birth.  In addition, Mother was the only known biological parent of the child until approximately 1½ years after her birth.  Once Father became aware of his paternity, he filed a custody complaint against both Mother and Ex-Wife and did not challenge Ex-Wife’s standing.  Finally, unlike prospective adoptive parents, whose intent by virtue of adoption is to completely supplant and oust the biological parents, Ex-Wife does not intend to completely supplant and oust Mother and Father.

The Superior Court vacated the trial court’s order and found that Ex-Wife stood in loco parentis to the child and had standing to pursue continued custody.  The Superior Court noted that although its decision conferred standing to Ex-Wife in the custody action, it did not automatically result in or equate to custodial time for her but merely allows the trial court to consider the child’s best interests in the action.  The Superior Court remanded the case to the trial court for a custody hearing on the merits as to Father’s custody complaint against Mother and Ex-Wife.


Ashley StitzerAshley B. Stitzer is a family law attorney representing men and women in all aspects of family law matters, including divorce, alimony/spousal support, equitable distribution, and property division, marital agreements, child support and child custody. From custody disputes and support issues to complex divorce and property division, Ashley takes a direct, personal approach to resolving each client’s family law concerns and prides herself on being thorough, passionate and laser-focused on her clients’ needs. Ashley also has significant experience from prior practice representing businesses in corporate bankruptcy matters which she utilizes regularly in her representation of high net worth clients in divorce proceedings, including representations involving business valuation and employee stock ownership plans. If you’d like to schedule a consultation with Ashley, feel free to email her at [email protected] or call her at 610-840-0243