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. The biological mother appealed; however, the Superior Court affirmed the trial court’s order.