Lesbian Co-Parent Prevails Over Biological Mother

Pennsylvania appeals court rules children’s best interests are paramount

A unanimous three-judge panel of the Pennsylvania Superior Court upheld a trial judge’s ruling that primary parental custody of two young twins should go to their biological mother’s former same-sex domestic partner, because the best interest of the children outweighed their biological ties to their birth mother.

The September 26 ruling affirmed a decision issued last January by Bucks County Common Pleas Judge Susan Devlin Scott.

Patricia Jones and Ellen Boring Jones, who began living together as partners in 1988, decided to have children through donor insemination. Ellen gave birth to twin boys in December 1996, and the women and their children lived together as a family until January 2001, when Ellen moved out of Patricia’s house with the children. According to the court’s opinion, Ellen subsequently sued Patricia for child support, even as she sought to eliminate the twins’ contact with their other mother.

Patricia then sued to have primary custody switched to her, arguing that it was in the twins’ interests to have continued contact with both of their mothers and that she would facilitate this while Ellen was trying to prevent it. Judge Scott conducted a thorough inquiry, and came to the conclusion that Patricia was correct. Although Ellen was not an unfit mother, primary residence with Patricia would be better for the twins, based not only on Patricia’s commitment to preserve their relationship with both mothers, but also because of Patricia’s greater stability as compared to Ellen’s problems with drinking and holding down a job.

Traditionally, custody disputes have been heavily weighted in favor of biological parents, who are said to have a prima facie right to custody of their children unless shown to be unfit. But the Pennsylvania courts have departed from this traditional approach in cases involving step-parents, and the Superior Court panel was ready to extend this departure to the context of same-sex partners.

Under this newer approach, a non-biological parent who has bonded with a child and has an “in loco parentis” relationship with him or her can win primary custody without having to prove that the biological parent is unfit if they can show by clear and convincing evidence that the change is in the child’s best interest, a hurdle higher than that required in a dispute between a biological mother and father.

The Superior Court found that Scott had faithfully followed this new approach, and found convincing Patricia’s evidence that Ellen planned to exclude her from their twins.

The court took note of Patricia’s contention that the law must change further to reflect the reality of same-sex families, but concluded that it was not necessary to go so far in order to upheld Scott’s order in her favor.

“[Patricia] claims that in the situation presented here, where two people together decide to have a child, although only one is the biological parent, and they both live together and parent the children together following their birth, the standard should be a simple best interests analysis, and that the law should abandon both the presumption in favor of the biological parent and the ‘clear and convincing’ standard of proof,” the Superior Court ruling stated. “Since the judge determined, and we agree, that there was ‘clear and convincing evidence’ in this case, we do not reach that issue today.”

The court seemed to think it was not really breaking new ground, since it designated the decision as “non–precedential” and did not publish the text on its Web site, but actually the extension of the step-parent approach to same-sex couples is a significant move, since it makes it no longer necessary for co-parents to prove the biological parent unfit. The decision continues a trend in the Pennsylvania courts of extending more legal recognition to gay and lesbian families.

Jones’ case drew the high-power support of Lambda Legal, the National Center for Lesbian Rights, and the Center for Lesbian and Gay Civil Rights, a Pennsylvania public interest firm. Maureen Gatto, a Pennsylvania lawyer, served as local counsel on the case.

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