Some Pennsylvania jurists face accusations that they're judicial activists because they ruled courts may award primary custody to a gay person who is not the biological parent of a child.
They're not activists, however. The Bucks County Common Pleas judge who decided this case, the three-member Superior Court panel that upheld her and the seven Supreme Court justices who affirmed relied on routine family court reasoning, which is that the best interests of children are the primary consideration for custody.
The case involved a lesbian couple, Ellen Boring Jones and Patricia Jones. Together they cared for twin boys borne by Ms. Boring Jones in 1996 after she was artificially inseminated. When the women split up four years later, a judge gave Ms. Boring Jones primary custody. After she tried to deny Ms. Jones access to the children and delete Jones from the twins' names, the judge switched custody.
Since Pennsylvania law forbids marriage between gays, why are judges getting involved in the problems of a lesbian couple? Because gay people are still able to live together monogamously and raise children. Their families have the same problems that heterosexual couples do, including failed relationships that require judges to determine support payments, property apportionment and child custody.
Family courts cannot turn gay couples away. Besides, the state Supreme Court decided in 2002 that they have the right to adopt, which means they'd also have the right to seek settlement of custody disputes regarding those children in family court.
In this case, the judges treated the lesbian women like everyone else; their sexual orientation was not a consideration. Ms. Boring Jones contended Ms. Jones would have to prove Ms. Boring Jones unfit to get custody.
The trial judge ruled that custody is presumed to be with the biological parent but it's unnecessary to prove unfitness to give it to a person who served as parent.
What is necessary, the court said, is convincing evidence that giving custody to the person who served as parent would be in the children's best interest. The court said best interest was served by awarding Ms. Jones custody because she wouldn't deny the twins visits with Ms. Boring Jones, and the youngsters wanted to see both.
This was not a new idea. It was based on the best-interest standard set in a 2000 case in which the high court gave a stepfather primary custody over the objections of the biological father after the death of the mother.
Judges can't be deemed activists when they're deciding legitimate cases based on reasonable past standards.
