From The Legal Intelligencer: Superior Court Grants Equal Custody of Child to Same-Sex Partner

August 19, 2019 | By Michael E. Bertin

Obermayer partner Michael Bertin examines an important custody case in The Legal Intelligencer. The original source can be accessed here.

A hotly debated, and often scrutinized, issue in Pennsylvania child custody law is standing in custody awards to third parties when a biological parent is a litigant. Recently, the Pennsylvania Supreme Court addressed the issue of standing between same-sex partners in the case of C.G. v. J.H., 193 A.3d 891 (Pa. 2018). In that case, a same-sex unmarried former partner was denied standing in a custody action. In the recent Pennsylvania Superior Court case of RL v. MA, 209 A.3d 391 (Pa. Super. 2019), a same-sex partner was granted equal physical custody of the child at issue.

The pertinent facts of the RL case are as follows: MA (the biological mother) and RL (the nonbiological mother) are the parents of VL (the child). While the parties were in a romantic relationship in 2012, they decided to conceive a child by impregnating MA with the sperm of RL’s brother. According to the opinion: “the couple planned and prepared for child’s birth together, including decorating a nursery and shopping for baby supplies. RL was present at child’s birth, RL chose the child’s first name, and the couple decided together to give the child RL’s surname.” Not long after the child was born, the parties separated.

Initially, after the parties separated, the child lived with the biological mother and spent every other weekend with the nonbiological mother. Thereafter, in 2014, the parties began sharing custody of the child on a week-on week-off basis. The arrangement ended when RL (the nonbiological mother) complained to the daycare where the child attended and the biological mother worked that the biological mother was spending too much time with the child by taking the child off the premises during the day. Because of this, the biological mother stopped the weekly custody rotation.

RL, thereafter, filed a complaint for custody and a hearing was held where the trial court found her to have in loco parentis status, “and therefore standing, to pursue any form of physical or legal custody of child …” After a custody trial, the court awarded the parties shared legal and physical custody, whereby the child would spend alternating weeks with each parent.

Interestingly, in the opinion, contained in a footnote, the Superior Court noted that the nonbiological mother was granted in loco parentis status and the trial court did not grant her standing to pursue custody as a “parent.” Because the nonbiological mother failed to challenge the order on that basis, the Superior Court indicated that though the factual basis of this case could have been an opportunity to expand the definition of the term “parent” under Section 5324(1), the issue was not before the court and, therefore, the Superior Court was “constrained to review this case treating RL as a third party rather than the parent.” The importance of that harkens back to the Pennsylvania Supreme Court case of C.G. v. J.H., where there was a reference that the facts of that case did not provide the court with a basis which to further expand the definition of the term “parent” under Section 5324(1).

After the trial court in the RL case granted shared legal and physical custody to the parties, the biological mother appealed. The crux of the appeal pertained to her first issue complained of on appeal. That issue was: “has the nonparent litigant met her burden of proof under [23 Pa.C.S. Section 5327(b)] by presenting clear and convincing evidence that nonparent should have the same amount of physical custody time as a parent in the case where the parent seeks primary physical custody of the child?”

In Pennsylvania’s Custody Act, there is only one presumption. That presumption is under Section 5327 which is titled: “Presumption In Cases Concerning Primary Physical Custody.” Under subsection “b” of that section titled “Between a Parent and Third Party,” it reads: In any action regarding the custody of a child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of the parent may be rebutted by clear and convincing evidence.” In the present case, the nonbiological mother was seeking equal custody. She was not seeking primary physical custody. However, according to the opinion, at the hearing, the biological mother asserted at the hearing that she was seeking primary physical custody. As stated in many cases before with regard to a third party facing the presumption and burden: “even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the biological parent’s side.” And, in cases where the third party is seeking primary physical custody, the trial court must “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 reason that the hill is so hard to climb for the third party is that in such cases the third party bears the burden of production and the burden of persuasion and the burden is a heavy burden being that it is a clear and convincing standard. As referenced in the opinion, clear and convincing evidence has been defined as follows: “as presenting evidence that is so clear, direct, weighty and convincing so as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue.”

In the present case, the nonbiological parent cleared the first hurdle of standing. She then cleared the second hurdle of bringing the scales to even, by presenting her case. The trial court found the nonbiological parent’s testimony to be credible and that the parties had an informal agreement to share physical custody of the child on a weekly rotation, and that the child had been thriving in the 50/50 custody arrangement that was in place for 70% of the child’s life. The trial court also found that the only reason the 50/50 schedule stopped was because the biological mother was upset when the nonbiological parent contacted her place of employment. As such the trial court found: “‘the evidence and testimony was clear, direct, weighty and convincing’ that ‘the scale was tipped to even between RL and [appellant]’ and the child’s best interest had been served for the majority of his life by implementing the week-to-week physical custody.” Because of this, the Superior Court affirmed the trial court’s order.

What is most interesting about this case is that the appellant’s argument took another avenue with regard to the interpretation of Section 5327 pertaining to the presumption in favor of the biological parent. The appellant’s argument was that the nonbiological third-party had to bring the scales to even and then tip them in her favor even though she was seeking equal physical custody and not primary physical custody. Many practitioners are of the view that the presumption section of the Custody Act only applies to cases pertaining to primary physical custody, as the title to the section states the same. However, when reading the language of the statute, it does not delineate between a primary physical custody action and a nonprimary physical action.

In the RL case, the Superior Court states that if the third party had to prove her case so that the scales tipped hard in her favor, after bringing the scales to even, primary physical custody would be warranted. Therefore, in a case where 50/50 custody is sought and is appropriate, if the scales are brought to even (after starting with the scales tipped in favor of the biological parent pursuant to the presumption contained in the statute) the inquiry is finished and the nonbiological third party has met her burden of production and persuasion. This is an interesting analysis and interpretation of the Custody Act, and it is logical. However, it is not unreasonable to think that prior to this reported case, if the matter did not pertain to a primary physical custody claim, no presumption would apply at the onset of the case. Therefore, the scales would not have to be brought to even and the parties would merely be proving their case on equal footing. However, in light of the RLcase, in a custody matter between a third party and a parent, and the relief sought is equal custody, it appears as though Section 5327 will apply and the scales will be tipped hard in the favor of the biological parent at the onset and have to be brought to even by the third party in order to succeed. It is important to note that the opinion references that biological mother made a claim for primary physical custody at the hearing. That may be the distinction and reasoning of why the presumption had to apply from the onset.

This case is very important for practitioners and the bar as third party custody actions continue to evolve and shape custody law in Pennsylvania.

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. He is co-author of the book “Pennsylvania Child Custody Law, Practice, and Procedure.“ Bertin is the chair of the family law section of the Pennsylvania Bar Association, a Fellow of the American Academy of Matrimonial Lawyers, former chair of the family law section of the Philadelphia Bar Association and the current co-chair of its custody committee. He can be reached at 215-665-3280 or michael.bertin@obermayer.com


About the Authors

Michael E. Bertin


Main Line Family Law Attorney Michael co-chairs Obermayer’s Family Law Group. He focuses his practice on child custody, child support, and divorce, including the negotiation and litigation of domestic relations cases, divorce,...

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