If all of the changes we have witnessed over the past 40 years, among the more notable is our culture’s attitude toward same-sex couples. Same-sex relationships are portrayed routinely in movies, theater, and, perhaps most of all, television. It was inevitable then that legal issues which are not unlike those experienced by traditional couples would surface for our courts to resolve.
Two women who began living together in 1988, became involved in a custody battle (Jones v. Jones) with a result which might not have been anticipated and has generated a good bit of discussion. After being artificially inseminated, one of the women gave birth to twin sons in 1996; the children and the women resided together until 2001, when the women separated.
Upon separation the children remained with the biological mother, and the other partner commenced an action seeking custody; the trial court awarded shared custody, though the primary physical custody was awarded to the biological mother. In what might have been a strategic lapse, the biological mother then asked the trial court to enter a support order against her former partner.
In 2002 the partner who was not the biological mother sought a modification of the earlier custody order, seeking primary physical custody. Although Pennsylvania law creates a presumption that the best interests of a child are best served with the biological parent, a non-biological parent may rebut the presumption by presenting convincing evidence that the child’s wealfare will be better served with the non-biological partner.
Before, a non-biological parent can asset that he or she is better qualified in a custody dispute, he or she must establish that he or she stands in loco parentis to the child; i.e. he or she has the rights of a parent. Paradoxically enough, the Pennsylvania Superior Court found that there was no better evidence of the non-biological parent’s rights than the fact that the biological mother had sued her for support since only a person who stands in loco parentis can be liable for the support of a child.
Once the court ruled that the non-biological parent stood in loco parentis to the children, it considered the primary issue which was which parent would provide the better home for the children; and it ruled in favor of the non-biological mother.
In deciding between two parents claiming custody a court must consider a large number of factors, and here it was determined that the children had developed strong psychological bonds with the non-biological parent. The strong presumption in favor of the biological parent was rebutted.
There have been a number of cases where grandparents, aunts, and uncles of children have successfully sought custody where the courts have determined that they could provide better environments for the children than the biological parents. What sets this case apart is the fact that this same Superior Court over the past 20 years has twice ruled that while a parent’s homosexual orientation would not be an absolute bar to gaining custody, “it would not be irrelevant” in the court’s deliberations. In both of those cases the court ruled in favor of the biological parent; the present ruling seems to ignore the sexual orientation of the non-biological parent once it was determined that she stood in loco parentis to the children. It has received a good bit of comment since it is precedent-setting.
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