C.G., Aplt. v. J.H. ( 2018 )

[J-32-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
C.G., : No. 2 MAP 2018
:
Appellant : Appeal from the Order of the Superior
: Court at No. 1733 MDA 2016 dated
: October 11, 2017 Affirming the Order
v. : of the Centre County Court of
: Common Pleas, Civil Division, at No.
: 2015-4710 dated September 22,
J. H., : 2016.
:
Appellee : ARGUED: May 15, 2018
OPINION
JUSTICE MUNDY DECIDED: September 21, 2018
In Pennsylvania, standing requirements limit who may seek physical or legal
custody of a child to the following individuals: (1) a parent; (2) a person who stands in
loco parentis to the child; or (3) under certain conditions, a grandparent of the child who
does not stand in loco parentis. 23 Pa.C.S. § 5324. We granted allowance of appeal to
explore whether a former same-sex, unmarried partner of a biological parent may have
standing to pursue custody either as a parent or as a person who stood in loco parentis
to the Child, and to what extent post-separation conduct is relevant in an in loco parentis
analysis.
I.
Appellant C.G. and Appellee J.H. were a same-sex couple living together in
Florida. In October 2006, J.H. gave birth to Child. Child was conceived via intrauterine
insemination using an anonymous sperm donor. J.H. is the biological mother of Child.
C.G. shares no genetic connection with Child, and did not adopt Child.1 Following Child’s
birth, the couple continued to live together for approximately five years before separating.
J.H. and Child moved to a separate residence in Florida in February 2012, and they
relocated to Pennsylvania in July 2012.
On December 8, 2015, C.G. filed a custody complaint seeking shared legal and
partial physical custody of Child alleging she “acted (and acts) as a mother to the minor
child as well, as the minor child was conceived by mutual consent of the parties, with the
intent that both parties would co-parent and act as mothers to the minor child.” Custody
Compl., 12/8/15, at ¶ 3. She averred further that “[i]t is in child’s best interests and
permanent welfare to have a relationship with both parents.” Id. at ¶ 7. C.G. continued
that she “mutually agree[d] to have a child with [J.H.], and both participated in selecting a
sperm donor in order for [J.H.] to conceive their minor child.” Id. C.G. claimed she served
daily as Child’s mother from the time of conception and birth until 2011 by, for example,
appearing at pre-natal appointments, participating in the birth of Child, and cutting his
umbilical cord. See id. With respect to her relationship with Child following the dissolution
of her relationship with J.H., C.G. claimed that J.H. began withholding Child from C.G. in
February 2012,2 allowing only once a week contact, despite C.G.’s requests for more;
J.H. moved Child to Pennsylvania without notifying or consulting C.G.; C.G. has had
1 The parties agree that at the time of Child’s birth in 2006, same-sex second-parent
adoption was not legal in Florida, and although it became legal in 2010, the parties did
not discuss pursuing adoption. See N.T., 2/5/16, at 8 (C.G. testified the parties did not
talk about adoption following its legalization in Florida); id. at 57(J.H testified the issue of
adoption “was never raised.”); see also N.T., 4/12/16, at 310.
2 C.G. lists the dates of J.H. and Child’s move from the shared residence and their move
to Pennsylvania as occurring in February and July of 2011, respectively. See Custody
Compl., 12/8/15, at ¶ 12. However, the record indicates that the relevant time of
separation began in 2012. See, e.g. N.T., 2/5/16, at 5-6 (C.G. testified that she and J.H.
separated in February 2012 and that J.H. moved to Pennsylvania in July 2012, and
acknowledged the error in the custody complaint.).
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minimal and inconsistent contact with Child, via telephone and one physical contact since
J.H. and Child relocated to Pennsylvania; J.H. represented to C.G. she could have more
regular contact with Child following the parties’ settling financial matters attendant to their
separation, but following the parties’ resolution of those matters, J.H. did not permit C.G.
to see or have contact with Child. See id.
On January 6, 2016, J.H. filed preliminary objections to the complaint asserting
that C.G. lacked standing to bring an action for any form of custody under 23
Pa.C.S. § 5324 because C.G. is not a parent, does not and did not ever stand in loco
parentis to Child, and is not a grandparent. See Prelim. Objections, 1/6/16, at ¶¶ 7-11.
J.H. disputed that Child was conceived by mutual consent with the intent to co-parent.
Rather, she contended that “the decision to have a child was solely that of [J.H.] . . . [C.G.]
made it clear to [J.H.] that [C.G.] did not want another child (having two children of her
own from a prior relationship) and that [J.H.] would bear responsibility for the child she
conceived[.]” Id. at ¶ 12. J.H. continued that she bore all costs of Child with the exception
of limited situations in which C.G. contributed “minimally,” and “since the child’s birth [J.H.]
has acted as the sole parent for the child. [C.G.’s] involvement was solely that of [J.H.’s]
girlfriend from the child’s birth until November 2011[.]” Id. Additionally, she asserted that
pursuant to C.G.’s desire not to be a parent to Child, J.H. “made all decisions regarding
the child’s education, medical care, growth and development, and attended to all of his
daily, educational and medical needs with the exception of limited times during which
[C.G.] babysat for [J.H.]” Id. J.H. claimed that, in December 2011, C.G. asked J.H. to
move out of the shared residence by February 2012 because C.G. wanted to continue a
romantic relationship with a woman with whom she was having an affair. See id. J.H.
agreed that she and Child moved out of the house in February 2012, and moved to
Pennsylvania in July of that year. See id. She additionally agreed that C.G. “has spoken
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with the child only minimally and seen him only one time, which was in March 2014.” Id.
She continued that since the move, C.G. has not provided financial support to Child
except for one week of camp and one month of before and after school care, and has
occasionally sent nominal gifts. See id. She sought dismissal of the complaint based on
legal insufficiency and lack of capacity to sue. See Pa.R.C.P. 1028(a)(4) and (5).
C.G. filed a response to the preliminary objections on January 25, 2016, in which
she claimed standing as a parent under Section 5324(1) or “at the very least” as a person
in loco parentis to Child under Section 5324(2). See Response to Prelim. Objections,
1/25/16, at ¶¶ 7-11. She generally disputed the factual representations in J.H.’s
preliminary objections in support of her own account of the decision to conceive and
parent Child. See id. at 12.
The trial court held hearings over three days at which a number of witnesses
testified and conflicting evidence was presented. Consistent with the assertions in the
complaint and responses, the gravamen of the parties’ respective presentations was
C.G.’s participation in the conception, birth, and raising of Child, the intent of the parties
with respect thereto, and the perception others held of the household or family dynamic.
For example, C.G. testified she and J.H. “planned to have a child together[;]” that J.H. did
not begin the process of trying to become pregnant until C.G. consented; the couple would
look for donors together on a donor site; and she considered Child her son from the time
he was born. N.T., 4/12/16, at 38-55. Following his birth, C.G. described her relationship
with Child as a parent/child relationship. See id. at 103. J.H., by contrast, testified the
decision to have a child was hers alone, she did not consider C.G. to be a parent to Child,
or hold her out to others as such. See N.T., 2/5/16, at 28-29 (“[C.G. did not want a child[,]”
but “tolerated the idea” of J.H. having one.); see also N.T.,4/12/16, at 207-08 (“I wanted
to have a child. [C.G.] did not want that, and I let her know I made an appointment with
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a fertility doctor, and I was moving forward with that for myself.”); id. at 222 (“I am [Child’s]
mom, and [C.G.] is not.”).
In all, the trial court heard from 16 witnesses, offering differing testimony on issues
bearing on the parties’ relationship between and among J.H., Child, C.G., and her
daughters (who were, at the relevant time, college age), the intent of the parties prior to
and after Child’s conception and birth, and parental duties performed for Child. C.G.
offered a number of witnesses supporting her position that she acted as a mother to Child
and that she and J.H. undertook jointly to conceive and raise child. See, e.g., N.T., 2/5/16,
85-91 (C.G.’s daughter, Christine Comerford, testifying she understood J.H. and C.G.
were having a baby together, she was told the Child was her brother, C.G. performed
day-to-day activities for Child including picking him up from school, bathing him, and
preparing meals); id. at 118-130 (C.G.’s daughter, Lauren Comerford, testifying she
understood her mother and J.H. were having a baby together, her mother tended to Child
and attended his activities as he grew older, and they took vacations together as a family);
N.T., 6/20/16, at 123-28 (Terri Michaels, friend and work colleague of C.G., former
colleague of J.H., testifying she understood J.H. and C.G. were having a baby together,
C.G. would arrange for Terri and her daughter to babysit Child, and she observed C.G.
perform parental duties such as preparing Child’s meals, playing with him, or correcting
him). J.H., by contrast, offered a number of witnesses who testified that J.H. decided
unilaterally to have a child and was Child’s primary caregiver. See, e.g., N.T., 4/12/16, at
7-11 (Katina Gray, one of Child’s babysitters in Florida, testifying J.H. hired her and would
discuss Child’s needs with her and perceiving C.G.’s involvement with Child akin to “a
babysitter”); N.T., 6/20/16, at 17-22 (Dr. Alicia Chambers, J.H.’s friend, testifying to her
discussions with J.H. about her commitment to becoming a mother despite the fact that
C.G. “didn’t want that,” “wanted to be free[,] and had her own children” and her
[J-32-2018] - 5
understanding that C.G. did not want to have a child. She explained that C.G. and J.H.
had an arrangement “that this was [J.H.’s] child, and therefore, [J.H.] was going to do the
work that was involved…”); N.T., 6/20/16, at 48 (J.H.’s brother testifying “it was clear”
C.G. did not desire to have a baby, J.H. performed the parental caretaking of Child, and
J.H. asked him and his wife to be Child’s godparents and “take care of [Child] if anything
would happen to [J.H.]”).
A number of exhibits, including handwritten notes, e-mails, Child’s medical
records, and Christmas cards were also admitted into evidence by the parties attempting
to evidence or refute C.G.’s status as a parental figure to Child.
On September 22, 2016, the trial court issued an opinion and order sustaining
J.H.’s preliminary objection as to C.G.’s standing to pursue custody.3 The trial court
concluded that C.G. was not a parent pursuant to Section 5324(1) because both parties
agreed that at the time and place of Child’s birth, same-sex marriage and second-parent
adoptions were not recognized. Thus, it proceeded to determine whether C.G. stood in
loco parentis to Child.
In its analysis, the trial court outlined certain undisputed facts, i.e, that Child was
conceived while the parties were in a relationship, Child referred to C.G. as “Mama C[.],”
the parties had a commitment ceremony, and C.G. was present for the birth and
christening of Child. See Trial Ct. Op. at 5. It then made a number of findings of fact
regarding the disputed evidence and testimony of the parties which are supported by the
record. First, the trial court looked to whether any documentation existed evidencing the
parties’ intent that C.G. be viewed as a co-parent to Child. The court noted that C.G. is
not listed on Child’s birth certificate nor does he bear her name, and notwithstanding the
3 Because the trial court sustained the preliminary objection regarding standing, it did not
rule on J.H.’s preliminary objection in the nature of a demurrer.
[J-32-2018] - 6
fact that Florida did not allow second-parent adoption at the time Child was born, neither
party suggested adoption following its legalization in 2010 nor executed or memorialized
a co-parenting agreement. See id. at 6. The trial court considered a note written by J.H.
to C.G. that referenced the hope of “having a child together” and one expressing J.H.’s
happiness following her baby shower, as well as the fact that Child was a beneficiary on
C.G.’s life insurance policy and was carried on her medical and dental insurance plans,
prior to separation. Id. at 6. However, in weighing the evidence, it concluded “[t]wo letters
and one policy” did not overcome J.H.’s testimony that C.G. did not agree to have a child,
but merely acquiesced to J.H. having one. Id. Moreover, it credited J.H.’s testimony that
following the couple’s separation, C.G. removed J.H. and Child from her medical and
dental policies and would not continue to provide coverage for Child. The trial court found
other documentation similarly demonstrated that C.G. was not a parent, and that J.H. did
not hold her out to be a parent to others. Specifically, on school and medical forms, C.G.
was listed as an emergency contact or as “partner” to J.H., rather than as a parent or
mother, and on certain paperwork for activities, she was omitted entirely. See id. at 7.
Focusing on the pre-separation period of time, the court evaluated the various and
conflicting testimony on C.G.’s discharge of parental duties toward Child. The trial court
found it significant that J.H. did not consult C.G. when choosing Child’s doctor, preschool,
and extra-curricular activities, and J.H. was responsible for the scheduling of Child’s
appointments, events, and made the childcare arrangements. The court found C.G.
occasionally attended activities, appointments, and provided care; however, it further
found that such contributions did not amount to the discharge of parental duties, and that
J.H. did not encourage C.G. to assume the status of a parent. See id. at 8. Turning to
the couple’s finances, the trial court highlighted that J.H. testified that she solely
purchased the items necessary for Child’s care, and the couple split household expenses.
[J-32-2018] - 7
The court found C.G. financially contributed to the household overall which created a
tangential benefit to Child. Id.
With respect to C.G.’s family and testimony offered by her daughters and father
reflecting familial titles, such as, in the case of C.G.’s parents, “Grandma A[.]” and
“Grandpa J[.],” the court found the interactions were incidental to J.H. and C.G.’s
relationships and titles were created for convenience rather than demonstrating an actual
familial bond or connection. See id. at 8.
The court briefly touched on whether a parent/child bond existed between C.G.
and Child. It acknowledged that because the hearings were pursuant to preliminary
objections and not a custody determination, evidence was not offered directly on the
subject of a bond. It found, nevertheless, that testimony elicited at the hearing
demonstrated that Child is well-adjusted and does not request to see C.G. See id. at 9.
Finally, the court reviewed evidence regarding the post-separation conduct of C.G.
It noted that C.G. did not request to be involved in the educational, medical, or day-to-day
decisions concerning Child, C.G. sent nominal care packages, but has only seen Child
once since July 2012, in March 2014, when he and J.H. visited Florida. See id. The court
found that the level of contact for a period of approximately four years is not consistent
with a person who has discharged parental duties or assumed parental status. Id. at 10.
It did not credit C.G.’s assertion that J.H. withheld Child; rather it found J.H. permitted
occasional phone contact, provided updates via text messages and email, and accepted
gifts for Child. See id. It noted J.H.’s account that such interactions were consistent with
C.G.’s overall involvement in Child’s life and the same as the type of involvement she
permitted other friends to have. Id. The court concluded that “the parties’ post-separation
conduct is consistent with the finding that [C.G.] was not a parent to the child.” Id.
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C.G. filed a direct appeal arguing, inter alia, the trial court erred in ruling she was
not a parent under Section 5324(1) because she and J.H. jointly conceived and raised
Child. The Superior Court concluded the trial court did not err because Pennsylvania
“case law has consistently treated same-sex life partners who have not adopted a child
as third parties for purposes of custody matters” and C.G. has failed to cite to a statute or
case law establishing a non-biological, non-adoptive former partner can be a parent. C.G.
v. J.H., 172 A.3d 43, 51-52. (Pa. Super. 2017). C.G alternatively argued the trial court
erred in finding that she did not stand in loco parentis to Child. The Superior Court
concluded that the trial court’s holding was based “on the unique facts of this case” and
it’s opinion “reflect[ed] a careful, thorough, and proper consideration of the evidence
presented by both parties, and did not, as C.G. alleges, simply disregard the evidence in
her favor.” Id. at 58-59. Because the decision of the trial court rested on credibility
determinations made within the trial court’s discretion, the Superior Court affirmed the
ruling that C.G. did not stand in loco parentis to Child. See id. at 59. Finally, the Superior
Court addressed and dismissed C.G.’s argument that the trial court erred by affording too
much weight to the post-separation conduct of the parties in its analysis. It observed that
the trial court did not find that C.G. was denied standing based on her post-separation
conduct; rather, the trial court viewed all of the evidence, including pre-and post-
separation conduct, when it evaluated whether C.G. ever stood in loco parentis to Child.
Id. at 60.
In a concurring opinion, Judge Musmanno questioned whether C.G. should be
treated as a third-party for the purpose of custody and suggested “it may be time to re-
visit the issue of the appropriate standard and presumptions to be applied in determining
standing where a child is born during a same-sex relationship.” Id. at 60 (Musmanno, J.,
concurring). He further notes that same-sex marriage was not allowed in Florida at the
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time, and suggests that if C.G. were a male, she would have standing as a parent,
seemingly assuming that J.H. and C.G. would have formally married had it been legal or
had they been in a heterosexual relationship. See id. n. 1.
We granted C.G.’s petition for allowance of appeal to consider the following
question.
Whether the Superior Court erred in affirming the decision of
the trial court that a former same-sex partner lacked standing
both 1) as a parent and 2) as a party who stood in loco
parentis to seek custody of the child born during her
relationship with the birth mother where the child was
conceived via assisted reproduction with an anonymous
sperm donor and the parties lived together as a family unit for
the first five years of the child’s life.
C.G. v. J.H., 179 A.3d 440 (Pa. 2018) (per curiam).
II.
Before addressing the arguments of the parties, we outline some general principles
regarding standing in custody matters. The fundamental concept of standing ensures
that a party seeking to litigate a matter has a substantial, direct, and immediate interest
in the subject-matter of the litigation. Ken R. on Behalf of C.R. v. Arthur Z., 682 A.2d
1267, 1270 (Pa. 1996); see D.G v. D.B., 91 A.3d 706, 708 (Pa. Super. 2014). “In the area
of child custody, principles of standing have been applied with particular
scrupulousness[.]” D.G., 91 A.3d at 708. This stringent application of standing principles
serves to protect both the interest of the court system by ensuring that actions are litigated
by appropriate parties and the interest in keeping a family unit free from intrusion “by
those that are merely strangers, however well-meaning.” Id. (citation omitted). Indeed,
in evaluating whether a Washington state statute conferring standing to “any person” to
seek visitation of children, the United States Supreme Court has recognized the
significant interest at stake in the context of persons seeking judicial intervention to gain
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visitation or custody of children. “The liberty interest . . . of parents in the care, custody
and control of their children-is perhaps the oldest fundamental liberty interest recognized
by this Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). In Pennsylvania, Section 5324
of the Domestic Relations Code limits the classes of persons deemed to have a
substantial, direct, and immediate interest in the custody of children by conferring
standing only upon “(1) a parent of the child[;] (2) a person who stands in loco parentis to
the child[; and] (3) a grandparent of the child who is not in loco parentis to the child[,]”
under certain circumstances. 23 Pa.C.S. § 5324. Determining standing in custody
disputes is a threshold issue that must be resolved before proceeding to the merits of the
underlying custody action. K.C. v. L.A., 128 A.3d 774, 779 (Pa. 2015). It “is a
conceptually distinct legal question which has no bearing on the central issue within the
custody action-who is entitled to physical and legal custody” of a child in light of his or her
best interests. Id. Issues of standing are questions of law; thus, the standard of review
is de novo and the scope of review is plenary. K.W. v. S.L., 157 A.3d 498, 504 (Pa.
Super. 2017). With that in mind, we turn to the question of C.G.’s standing in the instant
case.
III.
A. Standing as a parent
C.G. argues that she is a “parent” to Child under 23 Pa.C.S. § 5324(1) because
Child was conceived via assistive reproductive means using an anonymous sperm donor;
Child was born to C.G.’s partner, J.H., during their relationship; C.G. participated in
parenting Child; and C.G., J.H., and Child lived together as a family unit for the first five
years of Child’s life. C.G.’s Brief at 19, 24. She contends the Superior Court erred when
it held the term “parent” is limited to the biological or adopted parents of a child. She
urges this Court to hold that legal parentage under Section 5324(1) should include those
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who intend to bring a child into the world with the use of assistive reproductive technology
and then co-parent the child subsequently born through that process, in addition to the
traditional concepts of parentage by biology and adoption. See id. at 21. She highlights
that medical options to conceive are varied and open to a variety of intended parents.4
Moreover, same-sex couples, in particular, necessarily feature non-biological parent/child
relationships because the couple “must turn to donor gametes to conceive.” Id. at 25.
C.G. reasons that reading this Court’s decision in Ferguson v. McKiernan, 940 A.2d 1236
(Pa. 2007) with the Superior Court’s decisions in In re Baby S., 128 A.3d 296 (Pa. Super.
2015); J.F. v. D.B., 897 A.2d 1261 (Pa. Super. 2006); and L.S.K. v. H.A.N., 813 A.2d 872
(Pa. Super. 2002), illustrates that a genetic connection to a child is not determinative of
legal parentage in cases involving assistive reproductive technologies. See id. at 27-35.
Consequently, C.G. advocates for an intent-based approach to determining legal
parentage when a child is born through the use of assistive reproductive technology. See
id. at 27-35. C.G. also posits that this intent-based approach is consistent with how other
4C.G. notes that in 2014, for example, there were 60,000 live births that were the result
of in vitro fertilization and the number of children born as a result of donor gametes and
gestational carriers has increased. See C.G.’s Brief at 25.
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jurisdictions and the Uniform Parentage Act (2017) have addressed related issues.5
C.G.’s Brief at 35-38.6
J.H. emphasizes the stringent test applied in determining who has standing in child
custody matters is essential to preventing unnecessary intrusion into a family. See J.H.’s
Brief at 38-42. She continues that the cases C.G. relies on for the proposition that
parentage may be determined by intent do not support that reading of the case law
because those cases do not relate to parentage by intent, but parentage by mutual assent
of the parties. Id. at 49. She continues that “it would be wrong to allow [C.G] to be
5 C.G. devotes a portion of her argument to the state of law in Florida at the time of her
relationship with and separation from J.H., in particular its restrictions on same-sex
marriage and adoption around the time of Child’s birth. See C.G.’s Brief at 39-47. She
argues the trial court’s analysis and Superior Court’s affirmance did not give due
consideration to these legal barriers and instead “the courts below considered the state
of law in Florida as a legal conclusion that C.G. is not a parent.” Id. at 46. She posits to
allow these legal impediments to serve as evidence that she lacked intent is unfair to
C.G., and others similarly situated “as it allows the discriminatory treatment of LGBT
parents-even where the treatment has been held to be unconstitutional-to continue to
injure litigants in perpetuity.” Id.
C.G. seems to suggest she is entitled to a presumption of parentage based on,
inter alia, the uncontested fact that she and J.H. participated in a commitment ceremony
in Florida prior to Florida’s recognition of same-sex marriage. See, e.g. Brinkley v. King,
701 A.2d 176, 177 (Pa. 1997) (OAJC) (“One of the strongest presumptions in
Pennsylvania law is that a child conceived or born in marriage is a child of the marriage.”).
However, addressing whether a commitment ceremony in another state should be
considered a marriage for purposes of applying presumptions of parentage is beyond the
scope of the legal issue presented and the facts of this case. The trial court explained in
its Pa.R.A.P. 1925(a) opinion that it wished to clarify that the focus of its analysis was on
C.G.’s “actions and/or lack of actions. This finding in no way unconstitutionally restricts
persons in a same-sex relationship from being able to reproduce and share legal
parentage.” Trial Ct. Op., 10/31/16. Moreover, it is not disputed that the parties declined
to register with their county as domestic partners or pursue adoption once it became legal.
6 Academy of Adoption and Assisted Reproduction Attorneys has submitted an amicus
curiae brief in support of C.G. Amicus argues the trial court erred by concluding that
biology and adoption are the only means to achieve legal parentage in Pennsylvania, the
word “parent” is not sufficiently defined, and Pennsylvania should broaden the concept of
parentage to determine who a parent is through the eyes of the child.
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deemed a legal parent in the absence of [J.H.’s] assent, especially when [C.G.] outwardly
voiced objections to the pregnancy and thereafter failed to discharge parental duties.” Id.
J.H. notes that although C.G. accuses the trial court of relying on discriminatory laws in
concluding she was not a parent, the court undertook an examination of the evidence to
evaluate the intent of the parties in the conception of Child and C.G.’s discharge of
parental duties, in its in loco parentis analysis, which is the same standard C.G. advocates
for in determining parentage when a child is born via assistive reproductive technology.
Id. at 50. She emphasizes the factual findings made by the trial court regarding C.G.’s
participation in Child’s life and asks this Court to disregard C.G.’s factual assertions that
were not credited by the trial court.7 See id. at 50-57. She maintains that C.G. is not a
parent based on the credible evidence accepted as fact by the trial court. See id. at 60.
Section 5324 does not define the term parent. “Absent a definition in the statute,
statutes are presumed to employ words in their popular and plain everyday sense, and
the popular meaning of such words must prevail.” Centolanza v. Lehigh Valley Dairies,
Inc., 658 A.2d 336, 340 (Pa. 1995) (citing Harris-Walsh, Inc. v. Borough of Dickson City,
216 A.2d 329 (Pa. 1966)). The popular and everyday meaning of the term parent plainly
encompasses a biological mother and a biological father and persons who attain custody
through adoption, and our case law supports those applications. See J.F., 897 A.2d at
1273 (“Well-settled Pennsylvania law provides that persons other than a child’s biological
or natural parents are ‘third parties’ for purposes of custody disputes.” (citation omitted));
Faust v. Messinger, 497 A.2d 1351, 1353 (Pa. 1985 ) (Recognizing, “[t]he entire body of
7J.H. further contends that presumptions of parentage are not implicated in this case,
despite Judge Musmanno’s suggestion in his concurring opinion. See J.H.’s Brief at 57-
60. Specifically, she acknowledges the unavailability of marriage, but highlights the
parties did not formalize their union by registering as domestic partners in their county,
an option available to them, and further that Child was born because of the unilateral
decision of J.H. Id. at 58-59.
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law pertaining to adoption harmonizes in order to place an adopted child in the shoes of
a natural child in all legal respects[.]” However, the reality of the evolving concept of what
comprises a family cannot be overlooked. See Troxel, 530 U.S. at 63 (“The composition
of families varies greatly from household to household.”); J.A.L. v. E.P.H., 682 A.2d 1314,
1320 (Pa. Super. 1996) (Observing, “increased mobility, changes in social mores and
increased individual freedom have created a wide spectrum of arrangements, filling the
role of the traditional nuclear family[.]”). Thus, C.G. directs our attention to cases that
specifically involve the use of alternative means of conceiving and or reproducing through
assistive reproductive technologies, and asks this Court to revisit and expand the
definition of parent to include persons involved in the process but bearing no biological
connection to the resulting child.8
J.F. v. D.B., involved the relative rights of parties to a surrogacy agreement vis-à-
vis the resulting triplets. In that case, an unmarried couple used the services of a
surrogate, an egg donor, and the father’s sperm to reproduce. The gestational carrier,
who bore no genetic relation to the triplets she delivered, began misinforming Father and
8 C.G. argues L.S.K stands for the proposition that Pennsylvania courts have recognized
that “a person who intends to create children through assistive reproductive technology
ought to be held legally responsible” for the children on the same basis as a parent.
C.G.’s Brief at 29. In that case, Mother, L.S.K., and H.A.N. were in a same-sex
relationship and Mother eventually bore five children conceived through artificial
insemination. L.S.K., 813 A.2d at 874. The couple separated after approximately seven
years of living as a family, and H.A.N. filed a complaint for custody. The trial court granted
H.A.N. shared legal and partial physical custody, ruling that she stood in loco parentis to
the children, see 23 Pa.C.A. § 5324(2), not that she was a parent to the children under
Section 5324(1). H.A.N. attempted to avoid paying child support for the children, which
the trial court denied. The Superior Court affirmed the trial court’s determination based
on equitable principles: “equity mandates that H.A.N. cannot maintain the status of in loco
parentis to pursue an action as to the children, alleging she has acquired rights in relation
to them, and at the same time deny any obligation for support merely because there was
no agreement to do so.” Id. at 878. However, it did not conclude that H.A.N. was a parent
for the purpose of standing requirements. Rather, she was a third party who stood in loco
parentis to the children.
[J-32-2018] - 15
his partner, the intended-mother of the children, about the pregnancy and ultimately took
them home and assumed them as her own. The trial court voided the surrogacy contract,
and concluded the gestational carrier stood in loco parentis and was the children’s legal
mother. On appeal, the Superior Court held that the gestational carrier was a third party
and had not established in loco parentis as she “took custody of the children in flagrant
defiance of Father’s wishes,” it further held the trial court erred in voiding the surrogacy
contract and concluding the gestational carrier was the legal mother. Id. at 1280. The
surrogacy contract at issue identified Father as “Biological Father or Adoptive Father” and
his partner as “Biological Mother or Adoptive Mother.” J.F., 897 A.2d at 1265. Although
Father’s partner was not named in the action, the Superior Court concluded the trial court
erred in voiding the surrogacy contract. The court declined to rule on the propriety of
surrogacy contracts in general, leaving that task for the General Assembly to address.
J.F., 897 A.2d at 1280. It is undisputed that C.G. was not a party to a contract in
connection with Child’s birth, and her reliance on J.F. to support the intent-based
approach to parentage is misplaced.
This Court addressed a situation involving contracting for release of parental rights
in the context of assistive reproductive conception in Ferguson v. McKiernan. Mother in
that case sought the assistance of a former paramour (Donor) in conceiving a child.
Although reluctant initially, Donor agreed to provide his sperm for purposes of in vitro
fertilization after Mother agreed to release him from any rights and or obligations
attendant to paternity. See Ferguson, 940 A.2d at 1239. His identity was intended to
remain confidential, and following the birth of the twins, Mother acted in accordance with
the agreement for approximately five years at which time she filed a support action against
Donor. The trial court specifically found that Mother and Donor had formed a binding oral
contract to release Donor from parental obligations in exchange for his participation in
[J-32-2018] - 16
conception; however, it voided the contract reasoning a parent cannot bargain away
children’s right to support, as allowing such agreement would violate public policy. See
id. at 1241. This Court disagreed that enforcing such an agreement violated public policy,
particularly “in the face of the evolving role played by alternative reproductive
technologies in contemporary American society.” Id. at 1245. The focus of our analysis
was the enforceability of what was determined to be a binding oral contract. Our
reasoning, in part, follows.
[W]e cannot agree with the lower courts that the agreement
here at issue is contrary to the sort of manifest, widespread
public policy that generally animates the court’s determination
that a contract is unenforceable. The absence of a legislative
mandate coupled to the constantly evolving science of
reproductive technology and the other considerations
highlighted above illustrates the very opposite of unanimity
with regard to the legal relationships arising from sperm
donation, whether anonymous or otherwise. This undermines
any suggestion that the agreement at issue violates a
“dominant public policy” or “obvious ethical standards”
sufficient to warrant the invalidation of an otherwise binding
agreement.
Id. at 1248 (internal citations omitted). We found it noteworthy that but for the agreement
between Donor and Mother, the children at the center of the issue would not have come
into being. Id. Thus, we concluded that the agreement obviating Donor of his legal
parental rights and obligations was indeed enforceable. Id.
More recently, the Superior Court addressed establishing parentage by contract in
the context of a surrogacy arrangement where the intended mother was not biologically
related to the resulting child in In re Baby S. In that case, S.S. and her Husband decided
to become parents, and S.S. underwent fertility treatments to achieve that end.
Eventually, the couple entered into a service agreement with a company that coordinates
gestational carrier arrangements, identifying S.S. and Husband as the intended parents.
[J-32-2018] - 17
The agreement provided that the intended parents could terminate the agreement
provided gestational carrier had not undergone the necessary procedure to produce
pregnancy; in the event she had, the intended parents could still terminate the agreement,
but only after confirmation the gestational carrier was not pregnant. See In re Baby S.,
128 A.3d at 298. S.S. and Husband were matched with a gestational carrier in
Pennsylvania. They next entered into a service agreement with an egg donation agency,
and entered into an ovum donation agreement with an anonymous egg donor providing,
in part, “that the Intended Mother shall enter her name as the mother and the Intended
Father shall enter his name as the father on the birth certificate of any Child born from
such Donated Ova. . . . Donor understands that the Intended Parents shall be conclusively
presumed to be the legal parents of any Child conceived pursuant to this Agreement.” Id.
at 299-300 (citations omitted). Following the selection of the egg donor, the couple
entered into a gestational contract with gestational carrier providing the intended parents
were to assume legal responsibility for any child born pursuant to the agreement and that
intended mother wished to be the mother of a child who was biologically related to
intended father. See id. The gestational carrier became pregnant with an embryo created
from Husband’s sperm and the anonymous egg donor’s egg. S.S. expressed gratitude
and largely financed the procedure, and she and Husband attended the twenty-week
ultrasound. Id. However, prior to the child’s birth, S.S. refused to sign the necessary
paperwork to have her named on the child’s birth certificate because she and Husband
were experiencing marital problems. While pregnant, the gestational carrier sought a
court order declaring S.S. and Husband to be the legal parents of the child. In the
meantime, Baby S. was born, and gestational carrier was named as the mother, and no
name was listed for the father. Husband took custody of Baby S. S.S. filed a response
and new matter arguing the gestational carrier contract was unenforceable. Following
[J-32-2018] - 18
hearings, the trial court entered an order declaring S.S. and Husband as the legal parents,
and resolving other ancillary matters. Id. at 301. S.S. appealed to the Superior Court
arguing inter alia, the legislature has evidenced its reluctance to sanction surrogacy
contracts in the Commonwealth by declining to enact laws recognizing their validity;
Pennsylvania provides only two mechanisms to parentage, biology and adoption, and
neither situation applies to surrogacy agreements; the Court cannot authorize a new
means by which legal parentage is established, and the contract violates public policy by
creating a parent/child relationship without an adoption or judicial oversight. See id. at
303. Drawing largely from our decision in Ferguson, the court concluded that S.S. failed
to demonstrate the surrogacy contract was against public policy. See id. at 306. The
court disagreed with the position of S.S. that the lack of legislative direction regarding
surrogacy agreements implies disapproval. Rather, the court reasoned, “the absence of
a legislative mandate one way or the other ‘undermines any suggestion that the
agreement at issue violates a dominant public policy…” Id. The court acknowledged, as
this Court did in Ferguson, that “case law from the past decade reflects a growing
acceptance of alternative reproductive arrangements in the Commonwealth.” Id. Finally,
the court expressly disagreed with S.S.’s assertion that a biological relationship or formal
adoption are the only ways to attain the status of a legal parent in Pennsylvania:
Further, the Adoption Act is not the exclusive means by which
an individual with no genetic connection to a child can become
the legal parent; and nothing in the Adoption Act evinces a
“dominant public policy” against the enforcement of
gestational contracts. The legislature has taken no action
against surrogacy agreements despite the increase in
common use along with a [Department of Health] policy to
ensure the intended parents acquire the status of legal
parents in gestational carrier arrangements. Absent an
established public policy to void the gestational carrier
contract at issue, the contract remains binding and
enforceable against [S.S.].
[J-32-2018] - 19
Id. at 306 (citation omitted).
It is beyond cavil that parentage is established either through a formal adoption
pursuant to the Adoption Act9 or when two persons contribute sperm and egg,
respectively, either through a sexual encounter or clinical setting, and an embryo is
formed that is carried to term and results in a child. However, cognizant of the increased
availability of reproductive technologies to assist in the conception and birth of children,
the courts are recognizing that arrangements in this latter context may differ and thus
should be treated differently than a situation where a child is the result of a sexual
encounter. Specifically, the willingness of persons to act as sperm donors, egg donors,
and gestational carriers, is at least somewhat dependent on the extinguishment of the
donor or carrier’s parental claim to any resulting child and the intended parent’s release
of any obligation to support the child. See, e.g., In re Baby S., 128 A.3d at 298-300 (Egg
Donor and Gestational Carrier’s respective contracts outlining intended parents were to
be deemed legal parents). Given this, and especially in the absence of legislative
guidance surrounding this intimate and sensitive undertaking, it seems obvious that
contracts regarding the parental status of the biological contributors-whether one is an
anonymous contributor or known to the intended parent to the child be honored in order
to prohibit restricting a person’s reproductive options. See Ferguson, 940 A.2d at 1247-
48 (opining, “where a would-be donor cannot trust that he is safe from a future support
action, he will be considerably less likely to provide his sperm to a friend or acquaintance
who asks, significantly limiting a would-be mother’s reproductive prerogatives.” (footnote
omitted)).
Likewise, the Superior Court recognized that after a child is conceived through the
use of a surrogate and an egg donor, both of whom contracted away any parental rights
9 23 Pa.C.S. § 2101 et seq.
[J-32-2018] - 20
to the child, the non-biologically related intended parent’s contract to assume the role of
legal parent is enforceable. In re Baby S., 128 A.3d at 298. Consequently, there appears
to be little doubt that the case law of this Commonwealth permits assumption or
relinquishment of legal parental status, under the narrow circumstances of using assistive
reproductive technology, and forming a binding agreement with respect thereto.10 The
courts of this Commonwealth, when faced with the issue and without legislative guidance,
have expressly declined to void such contracts as against public policy.
However, this narrow judicial recognition of legal parentage by contract- where a
child is born with the assistance of a donor who relinquishes parental rights and/or a non-
biologically related person assumes legal parentage- does not afford C.G. the relief she
seeks. There was no dispute that C.G. was not party to a contract or identified as an
intended-parent when J.H. undertook to become pregnant through intrauterine
insemination. Therefore, she is clearly not a parent under any bases that have been
recognized by our jurisprudence.11
10 We do not wish to imply that a biological parent may bargain away his or her child’s
right to support. See Kesler v. Weniger, 744 A.2d 794, 796 (Pa. Super. 2000) (rejecting
Father’s argument that he had a sexual relationship with Mother in order to help her
conceive, under the impression she would not hold him responsible for child support).
11Notwithstanding the fact that Pennsylvania has not recognized a definition of parent
that is based on the mere intentions of two people to be viewed as parents, Justice
Dougherty expresses his concern that the failure to now recognize a broader definition
results in “a cramped interpretation of ‘parent’” that will inevitably inflict continued hardship
on non-traditional families, particularly same-sex couples undertaking to start a family.
See Concurring Opinion, Dougherty, J., slip op. at 4. In that regard, Justice Dougherty
contends under today’s decision “it remains impossible” for both partners in a same-sex
couple to have standing as legal parents in the absence of marriage or adoption, “as only
one can be biologically related to the child or contract to assume legal parentage.” Id. at
1-2. Similarly, Justice Wecht acknowledges that the case law in this area has focused on
a contractual relationship among intended parents (or persons who wish to renounce
parental claims) but concludes the decision today “does not go far enough” and should
draw from earlier decisions an intent-based recognition of parentage. See Concurring
Opinion, Wecht., J., slip op. at 2-5. Justice Wecht further imagines a scenario wherein a
[J-32-2018] - 21
C.G. contends our case law stands for the broad proposition that parentage can
be established by intent in situations where a child is born with the aid of assistive
reproductive technology. It does not. The jurisprudence in this Commonwealth has
declined to void contracts involving surrogacy and/or the donation of sperm or ova
recognizing a separate mechanism by which legal parentage may be obtained (or
same-sex partner may be foreclosed from seeking standing as a parent. See id. at 5.
Respectfully, we disagree, and clarify that nothing in today’s decision is intended to
absolutely foreclose the possibility of attaining recognition as a legal parent through other
means. However, under the facts before this Court, this case does not present an
opportunity for such recognition, as the trial court found as fact that the parties did not
mutually intend to conceive and raise a child, and the parties did not jointly participate in
the process. Indeed, despite the disapproval expressed by the concurring opinions over
the development of case law thus far on the evolving definition of the term parent for
purposes of standing, Justice Dougherty views it “unnecessary at this juncture to endorse
any particular new test for establishing standing as a parent.” Concurring Opinion,
Dougherty, J., slip op. at 4. We agree that “we must await another case with different
facts before we may properly consider the invitation to expand the definition of ‘parent.’”
See id. at 4-5.
Justice Dougherty hypothesizes that it is impossible for both partners in a same-
sex marriage to attain legal parentage absent marriage or adoption. With respect for this
perspective, we must disagree. We do not view today’s decision or the case law as
developed to compel such a result. For example, in J.F., Biological Father’s unmarried
partner was the intended mother of the children they sought to have via use of a
surrogate. Although the issue in that case was not Partner’s standing, but rather the non-
biologically related surrogate’s standing to the children she bore, the Superior Court
expressly declined to void the surrogacy contract. J.F., 897 A.2d at 1280. Likewise, in
In re Baby S., the Superior Court concluded that S.S., identified as the Intended Mother,
in the surrogacy agreement was to be deemed the legal mother. In re Baby S., 128 A.3d
at 298. Although S.S. was married to biological Father, the court grounded its reasoning
in the principles espoused in the case law involving surrogacy agreements, not the
presumption of parentage married persons enjoy. Id. There is nothing to suggest in our
case law that two partners in a same-sex couple could not similarly identify themselves
each as intended parents, notwithstanding the fact that only one party would be
biologically related to the child. However, this issue is not before the Court, and we are
not tasked with defining the precise parameters of contracts regarding assistive
reproductive technology. Likewise, the doctrine of parentage by estoppel, which Justice
Wecht contends heterosexual-sex couples may avail themselves of to seek standing but
which same-sex couples may not, is not implicated by the facts before this Court.
[J-32-2018] - 22
relinquished). The facts of C.G.’s case do not place her into this narrow class of cases
where legal parent rights and responsibilities have been relinquished or assumed via
contract. 12
C.G. also points to recent decisions in Vermont and Massachusetts to support her
intent-based approach. In Sinnott v. Peck, 180 A.3d 560 (Vt. 2017), the Vermont Supreme
Court addressed whether a person who is not biologically related to a child, has not
adopted a child, and is not married to the child’s parent may be the legal parent of the
child. In that case, Mother had a one-year-old child, whom she had adopted, when she
began her relationship with Partner. When Mother’s child was two years old, Mother and
Partner jointly decided to adopt another child from Guatemala, where Mother’s first child
was born. The couple sought to adopt using the same agency Mother had used to
facilitate her first adoption; however the agency did not permit same-sex parent adoption.
Mother presented herself as the adoptive parent, and ultimately, the second child, M.P.,
was brought home to Vermont in February 2006 and lived as a family unit together with
the couple until 2010. See Sinnott, 180 A.3d at 561-63. Following the couple’s
separation, the family division dismissed Partner’s petition to establish parentage based
on her assertion that she was the intended mother of both children. Id. at 563. The
12We recognize that C.G. was unable to adopt Child at the time of his birth under Florida
law. However, her argument is that adoption should not be the sole means by which a
non-biologically related person may obtain legal parentage of a child, and that the intent
of the parties should be determinative of the issue of parentage. We note C.G.
acknowledged in her complaint for custody that Child was born out of wedlock. Custody
Compl., 12/8/15, at ¶ 3. Although she now suggests a presumption should apply, she
does not focus her argument on why an informal commitment ceremony, without
registering her relationship in her municipality as domestic partners, should compel
application of the presumption of parentage that married persons enjoy. We decline to
speculate on what actions the parties may have taken had Florida law been different at
the time of Child’s birth; however, as we have noted, the parties declined to seek
recognition of their union by registering as domestic partners and likewise declined to
pursue adoption when it became available, while the relationship was still intact.
[J-32-2018] - 23
Vermont Supreme Court affirmed the decision with respect to the older child, but
concluded the family division erred with respect to the child the parties mutually agreed
to adopt. It reasoned that its past case law has “created a legal framework in which
parental status is viewed in the absence of marriage, civil union, or biological or adoptive
relationship with the child in a narrow class of cases in which the parents intended to bring
a child into their family and raise the child together, and did in fact do.” Id. at 563 (footnote
omitted). As we have expressed, our case law has acknowledged a much narrower
framework for establishing parentage in the absence of adoption, biology, or a
presumption attendant to marriage, and the facts of C.G.’s case do not fit into such a
paradigm.13
Similarly, C.G.’s reliance on Massachusetts’s case law is inapposite to her claim.
By statute, Massachusetts, unlike Pennsylvania, provides a presumption that a man is
the father of a child born out of wedlock “if he jointly, with the mother received the child
into their home and openly held out the child as their child.” Partanen v. Gallagher, 59
N.E.3d 1133, 1135 (Mass. 2016). In Partanen, the undisputed facts were that two women
were in a committed relationship and jointly undertook to conceive and have children via
in vitro fertilization. The couple welcomed two children. Ultimately, the parties separated
and the non-biologically related party sought to be declared the presumptive parent. The
Supreme Judicial Court of Massachusetts concluded that the statute may be applied in a
gender-neutral manner despite the gendered terms it employed and “may be construed
13 We recognize the view of the concurring Justices favoring a definition of parent that
would focus on the intent of the parties as the operative fact in determining who is a parent
under Section 5324(1); however the concurrences likewise recognize that this case does
not fall into such a framework. See Concurring Opinion, Dougherty, J., slip op. at 3;
Concurring Opinion, Wecht, J., slip op. at 7. Accordingly, as expressed supra, we agree
with Justice Dougherty that it is unnecessary at this time to expand the definition of parent
or endorse a new standard under the facts before this Court. See Concurring Opinion,
Dougherty, J., slip op. at 4-5.
[J-32-2018] - 24
to apply to children born to same-sex couples, even though at least one member of the
couple may well lack biological ties to the children.” Id. at 1138 (footnote omitted).
The instant case is not one where a statutory presumption would be bestowed on
a similarly-situated male based on cohabitation in the absence of marriage, and as
highlighted throughout, the factual findings of the trial court determined that C.G. did not
jointly participate in Child’s conception and hold him out as her own. Accordingly, this
case does not provide this Court with a factual basis on which to further expand the
definition of the term parent under Section 5324(1).14
III.
B. Standing as in loco parentis
Before outlining the arguments of the parties, this Court has explained in loco
parentis as follows:
In loco parentis is a legal status and proof of essential facts is
required to support a conclusion that such a relationship
exists. . . .
The phrase “in loco parentis” refers to a person who puts
oneself in the situation of a lawful parent by assuming the
obligations incident to the parental relationship without going
through the formality of a legal adoption. The status of in loco
14 We note other jurisdictions have legislatively addressed the issue of parentage where
assistive reproductive technology is employed. See, e.g., 13 Del.C. § 8-201(Delaware
statute explaining that a mother-child relationship is established between a woman and a
child under a number of circumstances, including, the “woman having consented to
assisted reproduction by another woman … which resulted in the birth of a child” and also
outlining the scenarios by which one is deemed a de facto parent); DC Code § 16-407
(Washington, D.C. statute establishing parentage in “collaborative reproduction” in
different contexts including gestational surrogacy arrangements and defining parent as
the intended parent regardless of a genetic connection to the child). As we have
observed, however, in this case C.G. was not a party to an agreement to conceive Child
and did not intend to be a parent. Thus, even if this Court or the General Assembly
expanded the definition of parent, she would not be entitled to the relief she seeks.
[J-32-2018] - 25
parentis embodies two ideas; first, the assumption of a
parental status, and second, the discharge of parental duties.
The rights and liabilities arising out of an in loco parentis
relationship are, as the words imply, exactly the same as
between parent and child. The third party in this type of
relationship, however, can not place himself in loco parentis
in defiance of the parents’ wishes and the parent/child
relationship.
T.B., 786 A.2d at 916-17 (citations omitted).
C.G. argues the trial court erred in its in loco parentis analysis in two respects.
First, C.G. contends the Superior Court failed to take into account the presence or
absence of a parent-like bond between C.G. and Child. C.G.’s Brief at 50-52, 55. She
continues that the primary determinant in establishing in loco parentis standing is whether
the third-party lived with the child and the natural parent in a family-setting and developed
a bond with the child as a result of the natural parent’s participation and acquiescence.
Id. at 52. She highlights cases where in loco parentis has been conferred on a former-
partner based on the parties’ decision to have a child together and subsequently living
together as a family unit and cases where courts declined to confer in loco parentis status
where the petitioning party was more akin to a babysitter, or the parties never lived as a
family unit, or where the party assumed a parental status in defiance of the parent’s
wishes. Id. at 54-56. C.G. posits that the trial court failed to focus on the existence of a
bond and instead created a new test in its analysis by its categorization of the evidence,
i.e., it looked to documents, the parties’ finances, and who took primary responsibility for
Child. See id. at 57.
Next, C.G. contends the trial court erroneously held that the post-separation
conduct of the parties was determinative of whether she stood in loco parentis. She
continues that concluding that the post-separation conduct of a party disaffirms an in loco
parentis relationship runs contrary to appellate case law on the matter. See C.G.’s Brief
[J-32-2018] - 26
at 61-63. Specifically, she claims the trial court’s analysis regarding the post-separation
period of time violated three principles of the in loco parentis doctrine, that once attained,
the status cannot be lost; post-separation conduct cannot be used to deny a person in
loco parentis status; and post-separation conduct may be used to support a finding that
a person stood in loco parentis. See id.at 63-74. She asks this Court to “hold that the
relevant time period in which to examine bonding between the party and the child is the
time during which the natural parent fostered or acquiesced to the relationship between
the child and the third party.”15 Id. at 62.
J.H. counters that C.G.’s position emphasizing the existence of a bond as the
determinant factor is misplaced. Rather, to gain in loco parentis status a person must
first demonstrate that he or she assumed parental status and discharged parental duties,
a fundamental requirement which C.G. failed to establish. See J.H.’s Brief at 61-63. She
continues that notwithstanding C.G.’s claim, the trial court examined the nature of C.G.’s
relationship with Child. J.H. highlights that C.G.’s current view is the trial court erred by
failing to conduct a bonding evaluation, appoint a guardian ad litem, or interview Child,
despite not making any of these requests before the trial court. Id. at 65.
Responding to C.G.’s argument that the trial court placed too much weight on her
post-separation conduct, J.H. notes that the trial court and Superior Court recognized that
C.G. did not lose her status based on post-separation conduct; rather, her post-separation
conduct was consistent with her pre-separation conduct, i.e., she did not act or hold
herself out as a parent to Child. See id. at 66-67. Finally, J.H. argues that a rule
preventing courts from evaluating post-separation conduct would elevate the rights of
15 The American Academy of Matrimonial Lawyers (AAML), Pennsylvania Chapter has
submitted an amicus curiae brief in support of C.G. AAML argues that C.G. has standing
as a person in loco parentis to the Child, and the consideration of post-separation conduct
is irrelevant and may encourage bad behavior on the part of the parent with custody to
withhold the child.
[J-32-2018] - 27
former partners over the rights of natural parents because under 23 Pa.C.S. § 2511(a)(1),
parental rights are subject to termination when a parent fails to perform parental duties
for a period of at least six months. See id. at 68-69. Thus, she maintains post-separation
conduct is a relevant factor in looking to whether a party stands in loco parentis.
Section 5324(2) permits a person who stands in loco parentis to a child to petition
the court for custody of a child. As noted, gaining in loco parentis status requires the
petitioning individual to demonstrate two elements: the assumption of parental status and
the discharge of parental duties. See T.B., 786 A.2d at 916-17.
In T.B., on which C.G. relies, a former same-sex partner sought custody rights to
a child born during her relationship with the child’s Mother. This Court agreed with the
conferral of in loco parentis standing on the former partner. Factually, Partner and Mother
agreed to have a child together with Mother carrying the child and the Partner choosing
the sperm donor. They shared day-to-day parental duties such as taking the child to
appointments, the Partner was designated as guardian of child in Mother’s will, and she
had exclusive responsibility for child when Mother was not present. See id. at 914-15.
We concluded that the facts demonstrated Partner assumed a parental status and
discharged parental duties with the consent of Mother. Id. at 920. We also rejected
Mother’s argument at the time that the legal impossibility of Mother and Partner marrying
prohibited the court from conferring on Partner standing based on in loco parentis. “The
ability to marry the biological parent and the ability to adopt the subject child have never
been and are not now factors in determining whether the third party assumed a parental
status and discharged parental duties.” Id. at 918.
In J.A.L, the Superior Court reversed the trial court’s denial of in loco parentis
standing to a former same-sex partner. In that case, Mother and Partner agreed to raise
a child together and together selected the sperm donor. Mother and Partner executed a
[J-32-2018] - 28
nomination of guardian document, which included a statement reflecting the parties’ intent
to raise the child together, and an authorization for consent to medical treatment, allowing
Partner to consent to treatment for the child. Following the parties’ separation, the trial
court concluded Partner lacked standing. The Superior Court disagreed and noted the
following.
The in loco parentis basis for standing recognizes that the
need to guard the family from intrusions by third parties and
to protect the rights of the natural parent must be tempered by
the paramount need to protect the child’s best interest. Thus,
while it is presumed that a child’s best interest is served by
maintaining the family’s privacy and autonomy, that
presumption must give way where the child has established
strong psychological bonds with a person who, although not a
biological parent, has lived with the child and provided care,
nurture, and affection, assuming in the child’s eye a stature
like that of a parent. Where such a relationship is shown, our
courts recognize that the child’s best interest requires that the
third party be granted standing so as to have the opportunity
to litigate fully the issue of whether that relationship should be
maintained even over a natural parent’s objection.
Id. at 1319-20.
The court applied the principles of in loco parentis to the facts and concluded that
“[t]he inescapable conclusion to be drawn from this evidence is that in both [Mother’s and
Partner’s] minds, the child was to be a member of their nontraditional family, the child of
both of them and not merely the offspring of [Mother] as a single parent. The intention is
born out by the documents executed by the parties before the child’s birth and by [Mother]
giving the child [Partner’s] surname as a middle name on the birth certificate.” Id. at 1321.
The Superior Court closely examined the record and concluded that the parties’ conduct
after the child’s birth and pre-separation, established the Mother and Partner’s intent to
create a parent-like relationship with the Partner. It then turned to post-separation
conduct, finding that the “contact was reinforced after the parties’ separation, visits which
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occurred with a frequency and regularity similar to that of post-separation visits by many
noncustodial natural parents and thus must be considered adequate to maintain any bond
previously created.” Id. at 1322. Thus, the Superior Court concluded Partner had
standing to challenge custody.
The paramount concern in child custody cases is the best interests of the child.
K.C. v. L.A., 128 A.3d at 775. The important screening functions of standing requirements
protect the child and the family from unnecessary intrusion by third parties. See D.G., 91
A.3d at 708; K.W., 157 A.3d at 503-04. C.G. seeks to have this Court adopt a rule that
the decisive factor in this assessment is the existence of a bond between the third party
and the child. Our case law does not support such a loose application of standing
principles. The appellate courts of this Commonwealth have consistently described the
prerequisites to in loco parentis standing as assumption of parental status and discharge
of parental duties.16 See Peters v. Costello, 891 A.2d 705, 710 (Pa. 2005); K.W., 157
A.3d at 505. Here, the trial court found C.G.’s evidence lacking in these important regards
based on its credibility determinations, faced with conflicting testimony. Of course, it is a
concern to the courts whether a child has developed strong psychological bonds,
however, such bonds must necessarily be based on the assumption of parental status
and discharge of parental duties in order to achieve this legal status. See J.A.L., 682
A.2d at 1319-20. Indeed, if the determining factor were the child’s development of a
bond with the person seeking standing, it would be of no moment to the court if the bond
was forged contrary to the natural parent’s wishes. Acceptance of such a rule would
undermine well-established principles of in loco parentis analyses. See T.B., 786 A.2d
16The in loco parentis test has been applied in the same fashion regardless of whether
the person seeking in loco parentis is a former step-parent or a former same-sex partner
who had not married the child’s biological parent. See, e.g. Bupp v. Bupp, 718 A.2d 1278,
1281-82 (Pa. Super. 1998); J.A.L., 682 A.2d at 1318-19.
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at 917 (explaining that a third party “can not place himself in loco parentis in defiance of
the parent’s wishes and the parent/child relationship”).
Finally, we turn to the question of the court’s treatment of C.G.’s post-separation
conduct and its bearing on an in loco parentis analysis. As an initial point, we do not
disagree with C.G.’s position that the relevant time frame to determine whether a party
stands in loco parentis is when the party developed the relationship with the child with the
acquiescence or encouragement of the natural parent. Indeed, it is fundamental that a
party must have discharged parental duties and assumed parental status in order to gain
standing as a third party. The question is of what relevance, if any, is the conduct of the
party after there has been some separation between the party and the child. The Superior
Court dismissed a mother’s argument that her former paramour lost his in loco parentis
standing after the parties separated and she remarried in Liebner v. Simcox, 834 A.2d
606, 611 (Pa. Super. 2003) (explaining mother had cited no case law to support the
proposition that once attained, in loco parentis status could be lost due to change in
circumstances). In J.A.L., the Superior Court acknowledged the post-separation conduct
of partners to buttress its conclusion that the former-partner of the mother stood in loco
parentis. See J.A.L., 682 A.2d at 1322 (“This early contact was reinforced by visits after
the parties’ separation, visits which occurred with a frequency and regularity to that of
post-separation visits by many noncustodial natural parents and thus must be considered
adequate to maintain any bond previously created.”). We reiterate, the rights and
liabilities arising out of in loco parentis are the same as that between child and parent and
its status is conferred upon a person who puts him or herself in the situation of a lawful
parent. See T.B., 786 A.2d at 916-17. In J.A.L., the court found the post-separation
conduct of both parties supported the in loco parentis determination because it was akin
to post-separation conduct of many natural parents.
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In the instant matter, we agree with C.G. that the post-separation conduct should
not be determinative of the issue of standing; however, the conduct by either parent or
partner may shed light on the analysis of whether the person seeking standing was ever
viewed as a parent-like figure. We recognize that in some situations a natural parent may
seek to withhold a child from a person who has assumed parental status (or another
natural parent). See, e.g., Jones v. Jones, 884 A.2d 915, 919 (Pa. Super. 2005)
(awarding primary physical custody to former-partner of natural mother who gained in
loco parentis status and disapproving of mother’s continued attempts to exclude her
former-partner following the couple’s separation). However, this potential for misconduct
does not render the actions of the person seeking in loco parentis status immune from
review following a separation. We note in the instant case, despite characterizing the
court’s analysis of the post-separation contact determinative of whether or not C.G. stood
in loco parentis to Child, it was not. The trial court found, and the record supports, that
prior to the couple’s separation, C.G. did not assume a parental status or discharge
parental duties. The trial court simply concluded that the post-separation conduct of C.G.
was consistent with its initial determination, as the Superior Court did in J.A.L. In loco
parentis analyses are necessarily fact-intensive and case-specific inquiries, and we
decline to foreclose a trial court from reviewing all relevant evidence in making this
important determination that so greatly will impact the family unit.17
17 Indeed, we find persuasive J.H.’s position that it would be incongruous to ignore all
post-separation conduct between a third-party and a child for the purpose of assessing
whether the party stood in loco parentis, when the Adoption Act provides that a petition
seeking involuntary termination of a natural or adoptive parent’s rights may be filed if the
parent has “evidenced a settled purpose of relinquishing parental claim to a child and has
refused or failed to perform parental duties” for a period of at least six months preceding
the filing of the petition. 23 Pa.C.S. § 2511. To render all post-separation conduct
irrelevant would be to afford a person seeking in loco parentis standing, at any time, a
greater advantage to a natural or adoptive parent even in the event the third party had
demonstrated his or her relinquishment of parental claims to a child.
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IV.
In sum, we conclude that C.G. is not a parent under Section 5324(1) for the
purpose of seeking custody of Child. We further conclude that the trial court did not
commit error by failing to consider the existence of a bond between C.G. and Child as the
decisive factor of whether C.G. stood in loco parentis to Child. Indeed, the trial court
undertook to examine all of the evidence of record to determine whether C.G. assumed
parental status and discharged parental duties, and we discern no legal error in its
analysis. The order of the Superior Court is affirmed.
Chief Justice Saylor and Justices Baer and Todd join the opinion.
Justice Dougherty files a concurring opinion.
Justice Wecht files a concurring opinion in which Justice Donohue joins.
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