The recent case of Jones v. Jones may create the possibility of unrest in same-sex couples planning to have children. In the case, the Pennsylvania Superior Court affirmed the Bucks County trial court's award of primary physical custody of 8-year-old twin boys to the petitioner, Patricia Jones, the nonbiological parent and former same-sex partner of Ellen Boring Jones (Boring), the biological mother.

In this custody case between a lesbian couple, the parties began living together as a couple in 1988. During the couple's relationship, after Boring and Jones decided to have children, Boring was artificially inseminated and became pregnant with the twins. The twins were born Dec. 3, 1996. The parties and the children lived together as a family until January 2001, when Boring took the children and left Jones.

The Superior Court held that the trial court properly decided this case by treating it as a custody case between a biological parent and a third party. Jones had standing as a third party since she was able to prove that she was in loco parentis. "Once it is established that someone who is not the biological parent is in loco parentis, that person does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interest of the children to maintain that relationship or be with that person."

The Superior Court reaffirmed the standard that is used in custody cases between a biological parent and third party, that the biological parent has a prima facie right to custody: "[E]ven before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parents' side."

"What the judge must do, therefore, is first hear all evidence relevant to the child's best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even and down on the third party's side. . . . The principles 'do not preclude an award of custody to the non-parent. Rather, they simply instruct the hearing judge that the non-parent bears the burden of production and the burden of persuasion and that the non-parent's burden is heavy.'"

In the present case, the evidence showed that Boring (the biological parent) attempted to do the following: remove the name "Jones" from the children's names; tried in every way possible to sabotage Jones' relationship with the children; and tried to relocate out of the area to decrease the children's contact with Jones. Further, a custody evaluator determined that Boring suffered from "psychological dysfunction" that showed Boring's inability to maintain stability in jobs, residences, schooling or continuity of relationships for her and the children. There also was evidence that Boring had a drinking problem and had "a history of ignoring court orders." By comparison, "the evaluator determined that Jones is psychological healthy and stable." The court also found that Jones would not attempt to hinder the children's relationship with Boring.

The Superior Court held that the trial court was correct in determining that Jones had established by clear and convincing evidence that she "evened up and then tipped the scales in favor of finding that the children's best interests are served by awarding primary custody to her."

This case sets forth a number of family law principles. First, it reaffirms that in custody cases involving third parties and biological parents, the biological parent has a prima facie right to custody. Second, the burden is on the third party to prove by clear and convincing evidence that it is in the best interest of the child[ren] for the nonbiological parent to have primary physical custody. Third, in custody cases between biological parents and third parties, the test remains the best interest of the child and not the unfitness of the biological parent. Fourth, regardless of whether the custody case involves a long-standing same-sex relationship where both parents are equally viewed in the child's eyes as parents, the court will continue to treat the case as a custody dispute between a third party and a biological parent.

Irrespective of the nonbiological parent's child rearing abilities and familial relationship with the child[ren] and the fact that the nonbiological parent is one of the "parents" of the child[ren], that person, in a custody dispute, will be treated as a third party and will have the heavy burden of proving by clear and convincing evidence that it is in the child[ren]'s best interest to be in his or her custody. Aside from the foregoing legal principles, this case has substantial practical effects upon same-sex couples and their legal advocates and advisers. With regard to the legal community, in this era of cohabitation agreements and prenuptial agreements, the family lawyer must now be familiar with the principles of this case in making clear the legal consequences as to which partner of a same-sex relationship will be the biological parent.

Though this case is important to the practitioner for the above mentioned reasons, this case may have a major impact on same-sex couples planning on trying to have children. If partners in a same-sex relationship have knowledge of this case, either one of them may pause when deciding who should be the biological parent, since a custody presumption is at stake. Knowing what is at stake could cause the couple to reach an impasse so severe that the couple may decide to forgo having a child at all or, at worst, ending the relationship altogether.

Alternatively, out of fear of being the disadvantaged parent in a potential custody dispute, the parties may decide to adopt a child, if possible, so that each is on equal footing in the event they find themselves enmeshed in custody litigation, since neither parent will have a presumptive right to custody.

It is important to note that while the nonbiological parent prevailed in the Jones case because of compelling facts third parties have an extremely uphill battle when trying to achieve a like result. Also, in Jones, standing was not an issue. In many third party custody disputes, standing is a major issue. A lack of standing prevents a third party from entering the court house door.

In same-sex custody disputes, a heart-broken, separated, nonbiological partner no longer in possession of the couple's child, may lose contact with the child and delay in filing a custody petition, thereby jeopardizing his/her in loco parentis status. Such a loss would result in the courthouse door being shut on that former same-sex partner in a custody dispute due to a lack of standing. However, because the Jones case did not cover standing issues, that discussion is for another day.

Michael E. Bertin is an associate in the Philadelphia law firm of Obermayer Rebmann Maxwell & Hippel LLP. Mr. Bertin is a member of Council of the Family Law Section of the Pennsylvania Bar Association and is Co-Chairman of the Custody Committee of the Family Law Section of the Philadelphia Bar Association.

This article is reprinted with permission from the November 30, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.