The state Supreme Court has let stand a lower court ruling awarding primary custody of two children to a woman’s former lesbian partner, even though the ex-partner is not the biological parent.
The justices’ Nov. 28 decision to deny allocatur to Jones v. Jones [Boring] effectively upholds a Superior Court panel’s opinion affirming a Bucks County judge’s decision to award primary custody of twin boys to the nonbiological parent half of the couple, whose relationship ended after the two began raising the boys together.
In Jones, the partner who was the biological mother -- she was artificially inseminated after the couple had been together for a number of years -- had originally been given primary physical custody, and her ex was granted partial physical custody and ordered to pay child support. The boys were 4 years old when the couple split.
According to a March 2005 opinion from Bucks County Judge Susan Devlin Scott, biological mother Ellen Boring married a man shortly after her relationship with Patricia Jones ended. Boring ultimately moved to Indiana. She would tell her sons to call their stepfather “dad” and sought to downplay Jones’ role in their upbringing, according to the opinion.
Jones filed a number of contempt petitions in which she argued Boring was not complying with the custody order.
Following evaluation by a court-appointed therapist, Scott found in January 2005 that it would be in the best interests of the boys if Jones were awarded primary physical custody, and Boring, partial. Boring appealed to the Superior Court.
The panel in Jones filed its memorandum opinion affirming Scott’s order less than a month after oral arguments in the matter were held in Philadelphia.
“Once it is established that someone who is not the biological parent is in loco parentis, that person does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interests of the children to maintain that relationship or be with that person,” the panel’s opinion said, citing relevant Pennsylvania case precedent.
The panel in Jones consisted of Judges Jack A. Panella and Richard B. Klein and Senior Judge John T.J. Kelly Jr.
In reaching their decision, the judges declined to address Jones’ argument that Pennsylvania should adopt a simple “best interests” test, and that both the presumption in favor of biological parents and the “clear and convincing evidence” standard should be left behind.
”Jones asserts that the law is changing,” the opinion said. “As the concept of family evolves the law will evolve along with it.
”Since the judge determined, and we agree, that there was ‘clear and convincing evidence’ in this case, we do not reach [Jones’ argument] today,” it said later.
The judges noted that in its 2000 decision in Charles v. Stehlik, the Pennsylvania Supreme Court affirmed the awarding of primary custody to a child’s stepfather, rather than natural father, following the death of the mother.
“While the scale was tipped in favor of Boring, Jones produced clear and convincing reasons to even the scale and then tip it on her side,” the court said. “Jones did not establish that Boring was unfit, and was not required to do so, but Jones did clearly and convincingly establish that the children would be better off with her as the primary custodian and that the children’s relationship with both parties would be better fostered if custody were awarded to Jones.”
Arguing on Jones’ behalf before the Superior Court panel was Alphonso David, a New York-based Lambda staff attorney. Maureen Gatto of Dorian Goldstein Wisniewski & Orchinik in Bensalem, who handled the case at the trial level, joined David at the appellee's table before the Superior Court.
David had told the judges that affirming Scott’s holding in Jones would bolster the principle that there is a distinction in Pennsylvania law between nonbiological parents who have helped raise a child since birth and other third parties, such as stepparents, who become involved in a child's life after he or she is born.
In an interview yesterday, David applauded the state Supreme Court for declining to review the Superior Court’s decision in the case.
“This is once again a reaffirming that biology alone cannot trump the best interests of the child,” David said.
