Child Custody, Visitation & Relocation


Trial court properly awarded shared legal and physical custody to biological mother and her former romantic partner who had been granted in loco parentis standing because trial court analyzed the 23 Pa.C.S. §5328 custody factors and the record supported the trial court’s findings. Affirmed.

Appellant, child’s biological mother, and partner were involved in a committed romantic relationship and decided to conceive a child by impregnating appellant with sperm from partner’s brother. They prepared for the birth together and partner chose child’s first name and they decided to give child’s partner’s surname. However, the couple broke up soon after the child’s birth. They shared custody and parenting time under an informal agreement until 2018 when appellant stopped the weekly custody rotation. Partner filed for custody, the trial court granted “in loco parentis” status to partner, held a hearing and awarded shared legal and physical custody to appellant and partner with child spending alternating weeks with appellant and partner. Appellant appealed.

Appellant argues the trial court erred in awarding equal physical time to a nonparent and asserted that 23 Pa.C.S. §5327 required a trial court to apply a presumption in favor of a “biological parent” as opposed to a “nonparent litigant.” The court recognized the statutory presumption in favor of appellant but made a finding that partner rebutted the presumption by clear and convincing evidence based on the undisputed custody decisions the parties had an informal agreement to share physical custody on a weekly rotation for almost four years and that child had thrived under that custody arrangement.

Appellant argues trial court applies the incorrect burden when it used a clear and convincing evidence standard. The court noted that appellant failed to cite any legal authority that required a third part to tip the scale in their favor prior to awarding shared physical custody to the third party. The trial court did not err in finding, when the scale was “tipped to even,” that an award of shared legal custody was in the child’s best interest.

Trial court properly applied the statutory presumption in favor of appellant, found that clear and convincing evidence rebutted that presumption and found shared legal and physical custody was in the child’s best interest.


Digest of Recent Opinions, Pennsylvania Law Weekly, 42 PLW 513, Tuesday, May 28, 2019, R.L. v. M.A., PICS Case No. 19-0612 (Pa. Super. May 3, 2019)

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