T.B. v. L.R.M.

CAPPY, Justice,

concurring.

I join the majority opinion. I note that I fully agree with the majority that this court has never considered “[t]he ability to marry the biological parent and the ability to adopt the subject child [to be] ... factors in determining whether the third party assumed a parental status and discharged parental duties.” Majority slip op. at 8. In fact, we have recently issued a decision that stands for quite the opposite proposition. In Charles v. Stehlik, 560 Pa. 334, 744 A.2d 1255 (2000), we addressed a matter in which the trial court granted custody to the stepfather following the biological mother’s death. The biological father challenged this order. We affirmed the award of custody in favor of the stepfather, even though the stepfather was precluded from adopting the child since the biological father’s parental rights had not been terminated and notwithstanding the fact that there had been no finding that the biological father was unfit. Thus, it is my opinion that a finding that a person may stand in loco parentis to a child regardless of that person’s ability to marry the biological parent or to adopt the child is consonant with established precedent from this court.