In A.J.B. v. A.G.B., 2018 Pa. Super. LEXIS 197, 1, 2018 PA Super 50, the Court decided that a same-sex partner is entitled to loco parentis standing when they have lived with a child and the natural parent in a family setting. This applies whether this living arrangement is in a traditional family setting or a non-traditional one. If the same sex partner has developed a parental relationship with the child with the acquiescence and agreement of the natural parent, the same sex spouse is treated as a parent in the eyes of the Court.
As to third parties and standing with respect to custody, 23 Pa.C.S.A. § 5324 provides as follows:
- 5324. Standing for any form of physical custody or legal custody.
The following individuals may file an action under this chapter for any form of physical custody or legal custody:
(1) A parent of the child.
(2) A person who stands in loco parentis to the child.
(3) A grandparent of the child who is not in loco parentis to the child:
(i) whose relationship with the child began either with the consent of a parent of the child or under a court order;
(ii) who assumes or is willing to assume responsibility for the child;
The appellate court disagreed with the trial court and indicated that the same sex ex-wife did have standing in loco parentis. The ex-wife acted as a parent and established a long-held pattern of parental behavior. The ex-wife participated in the birth process of the child. She helped prepare for the arrival of the child. The ex-wife and mother were married at the time of the child’s birth and clearly demonstrated the intent to form a family and to jointly raise the child. Notably the ex-wife is listed on the child’s birth certificate and took part in the naming of the child. Moreover, the parties consulted an attorney regarding termination of the biological father’s rights. The ex-wife was also involved financially and remained in the child’s life post separation. Although everyone seemed to be aware that the ex-wife was not the biological parent, she held herself out as a parent. The ex-wife also established a pattern of acting in day to day existence as a parent – performing parental duties of daily life in school and day care. Moreover, after the separation the biological mother also gave ex-wife increasing amounts of custody culminating in a Consent Order.
The bottom line here is that same sex parents who establish a pattern of long term parental behavior along with the development of a long lasting parental relationship with the children will have an excellent chance of establishing some loco parentis standing in Pennsylvania Courts. Please note however that this allows such persons standing and is not necessarily any guarantee of victory in court on custody issues.