Michael Bertin Discusses a Recent Third Party Custody Case in The Legal Intelligencer

December 11, 2023

In an article published in The Legal Intelligencer on December 8, 2023, partner and co-chair of the family law group, Michael Bertin, discusses an important third-party custody case, serving as a  reminder of how the only presumption in the Child Custody Act applies in custody cases between a parent and a third party. In his article, titled “Shared Legal and Equal Physical Custody Awarded to Third Party,” Michael analyzes the Pennsylvania Superior Court case of Taylor v. Smith, 302 A.3d 203 (Pa. Super. 2023).

Taylor v. Smith

Kareem Smith was in a relationship with SJ (mother). During their relationship, a child was born, and Smith thought that he was the child’s father and raised the child until the mother’s death approximately a year later. Thereafter, it was confirmed that Victor Taylor was the biological father of the child. Smith, according to the opinion, does not dispute Taylor’s paternity, and Taylor does not dispute that Smith is in loco parentis to the child. Under the opinion, Taylor thereafter filed a complaint in custody against Smith seeking sole legal and physical custody of the child. The parties engaged in custody conferences to establish a plan to permit Taylor to be introduced into the child’s life. Those conferences resulted in an interim order where the parties equally shared physical custody and shared legal custody of the child. The Superior Court affirmed the trial court. 

According to the Superior Court: “as such, while the trial court recognized the statutory presumption in favor of biological parents set forth at 23 Pa.C.S.A. Section 5327(b), the trial court found clear and convincing evidence that the child’s best interests dictated maintaining shared legal and physical custody.”

The case is also a good reminder of who bears the burden of production and persuasion in such cases. Importantly, it is to be remembered that in such cases, the scales are tipped and tipped hard in favor of the biological parent upon the commencement of the action. However, if the scales are brought to even, it can be appropriate for the trial court to enter a shared custody schedule, and if the scales are then tipped hard in favor of the nonbiological parent, that third party can be granted primary custody.