Child Custody, Visitation & Relocation


The Pennsylvania Supreme Court has affirmed two lower court rulings that the former same-sex partner of a child’s biological mother cannot seek custody of the child because she has no biological connection to him and has not legally adopted him.

Last year, the Superior Court in C.G. v. J.H. affirmed a Centre County judge’s determination that C.G., who had been in a relationship with the biological mother of a son born in Florida through artificial insemination, was not entitled to custody of the boy because she was not legally considered a parent. The litigants are identified in court papers by their initials only.

J.H. alleged in preliminary objections to C.G.’s suit that the decision to have the child, J.W.H., was hers alone and C.G’s role was solely that of her girlfriend, according to Pennsylvania Superior Court Judge Carl Solano’s opinion. J.H. claimed that she made all of the important decisions regarding the child, that C.G. provided minimal financial support and that mother and son both moved out of C.G.’s Florida home to Pennsylvania when J.W.H. was 6 years old.

C.G. countered that she had standing in loco parentis under Pennsylvania’s Child Custody Law. However, the trial judge held that because same-sex marriage and second-parent adoption was not yet legal in Florida in 2006 when J.W.H. was born, C.G. did not have standing as a parent.

The Superior Court upheld that decision and C.G. appealed. Earlier that year, the high court granted allocatur on a single issue: “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.”

On Sept. 21, the high court ruled to uphold the lower courts’ rulings. While the justices were unanimous in the result, three of them diverged from the majority’s analysis on several broader issues.

The majority, led by Justice Sallie Updyke Mundy, rejected the ex-partner’s argument that parentage under Section 5324(1) of the custody statute should be broadened to include those who intend to bring a child into the world through assistive reproductive technology (ART) and then co-parent the child.

“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,” Mundy wrote in the majority opinion. “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.

“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,” Mundy continued. “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 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.”

Reference: Zack Needles, Pennsylvania Law Weekly, Tuesday, October 9, 2018

Kindly visit our Family Law and Child Custody websites or contact one of our Family Law Attorneys, Philadelphia or Child Custody Attorneys, Philadelphia for more information on this topic.