[J-32-2018] [MO: Mundy, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
C.G., : No. 2 MAP 2018 : Appellant : Appeal from the Order of the Superior : Court at No. 1733 MDA 2016 dated : October 11, 2017 Affirming the Order v. : of the Centre County Court of : Common Pleas, Civil Division, at No. : 2015-4710 dated September 22, J. H., : 2016. : Appellee : ARGUED: May 15, 2018
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: September 21, 2018 The trial court’s credibility findings in this case compel the conclusion C.G. lacks
standing to seek custody of Child. But in my respectful view, nothing warrants, much less
necessitates, the majority’s cramped interpretation of “parent” under 23 Pa.C.S. §5324(1),
the inevitable result of which will be the continued infliction of disproportionate hardship
on the growing number of nontraditional families — particularly those of same-sex
couples — across the Commonwealth. I therefore concur in the result only.
According to the majority, our precedent supports a conclusion parentage for
standing purposes may be proven in only four ways: biology, adoption, a presumption
attendant to marriage, or “legal parentage by contract — where a child is born with the
assistance of a donor who relinquishes parental rights and/or a non-biologically related
person assumes legal parentage[.]” Majority Opinion, slip op. at 21. Unfortunately, even
under this paradigm of parentage, it remains impossible — absent marriage or adoption
— for both partners of a same-sex couple to have standing as a parent, as only one can be biologically related to the child or contract to assume legal parentage. I see no good
reason why the Court should continue to impose such an overly-restrictive formulation,
which fails to take into account equitable principles and may ultimately frustrate the
paramount concern of protecting a child’s best interests. See Douglas NeJaime, The
Nature of Parenthood, 126 Yale L.J. 2260, 2289 (2017) (“[E]ven as principles of gender
and sexual-orientation equality have animated shifts in parental recognition, parentage
law continues to draw distinctions that carry forward legacies of inequality embedded in
frameworks forged in earlier eras.”).
The majority correctly observes the reality that what comprises a family is an
evolving concept. See Majority Opinion, slip op. at 15, citing Troxel v. Granville, 530 U.S.
57, 63 (2000) (“The demographic changes of the past century make it difficult to speak of
an average American family. The composition of families varies greatly from household
to household.”); J.A.L. v. E.P.H., 682 A.2d 1314, 1320 (Pa. Super. 1996) (“In today's
society, where increased mobility, changes in social mores and increased individual
freedom have created a wide spectrum of arrangements filling the role of the traditional
nuclear family, flexibility in the application of standing principles is required in order to
adapt those principles to the interests of each particular child.”). Yet despite recognizing
the diverse range of parental configurations that now exist, the majority interprets our
case law in a manner that continues to primarily tether parentage to traditional notions of
biology and adoption. There is a very real and grave risk to this approach, to children
and putative parents alike. See Brooke S.B. v. Eizabeth A.C.C., 61 N.E.3d 488, 499 (N.Y.
2016) (“A growing body of social science reveals the trauma children suffer as a result of
separation from a primary attachment figure — such as a de facto parent — regardless
of that figure’s biological or adoptive ties to the children[.]”) (collecting sources); NeJaime,
126 Yale L.J. at 2322 (“The harms of nonrecognition are not only practical but expressive.
[J-32-2018] [MO: Mundy, J.] - 2 Courts routinely term those who serve as parents but lack biological ties “nonparents” —
casting them as third parties who are otherwise strangers to the family.”).1
Cognizant of these potential harms, I would not interpret our case law so narrowly.
Instead, I believe there is room in our precedent — particularly in the absence of any
guidance from the legislature — to conclude an individual who lacks biological, adoptive,
or marital ties may nevertheless establish standing as a parent to seek custody under 23
Pa.C.S. §5324(1). See Sinnott v. Peck, 180 A.3d 560, 573 (Vt. 2017) (“[T]he Legislature’s
inaction to date is not an impediment to our own obligation to resolve the specific cases
before us by developing a consistent and coherent approach to defining parenthood
within the construct that the Legislature has given us and our prior case law; in fact, it
creates a more urgent need for us to act.”). Such is certainly the trend in other states.
See id. at 569-72 (detailing cases that “reinforce the modern trend” of analyzing non-
biological, non-adoptive, and non-marital parenthood by “focusing on the parties’
agreement and intentions at the time they brought a child into their home”); NeJaime, 126
Yale L.J. at 2260 (explaining “the law increasingly . . . recognizes parents on not only
biological but also social grounds” and offering comprehensive analysis of legal trends).
In line with this trend in other jurisdictions, C.G. asks this Court “to clarify that
parentage may not only be determined by biology or adoption, but also by the intent of
parties who create a child together using assisted reproductive technology, and then co-
parent that child together.” C.G.’s Brief at 21. In her view, parentage “turns on whether
1 I do not intend to minimize the significant and fundamental right of biological or adoptive parents to control the upbringing of their children. As the majority properly appreciates, the interest of parents in the care, custody, and control of their children “is perhaps the oldest [of the] fundamental liberty interest[s.]” Majority Opinion, slip op. at 11, quoting Troxel, 530 U.S. at 65. This fundamental right necessarily militates caution in expanding the category of those who may be identified as a “parent.” However, in my respectful view, the law need not deny the salience of biological or adoptive bonds to recognize the validity of additional indicia of parenthood.
[J-32-2018] [MO: Mundy, J.] - 3 the party in question had agreed to the conception of the child and whether that party had
intended to parent the child following the child’s birth.” Id. at 34. Justice Wecht would
similarly “embrace an intent-based test for parentage for persons pursuing parentage
through” assisted reproductive technology. Concurring Opinion, slip op. at 7 (Wecht, J.).
In my view, it is unnecessary at this juncture to endorse any particular new test for
establishing standing as a parent. As noted, the nature of the family in the modern era
continues to evolve, and the various alternative tests proffered above, as well as the tests
adopted by other jurisdictions, strongly suggest there may not be a one-size-fits-all
approach to adequately address each unique familial situation. See Brooke S.B., 61
N.E.3d at 500-01 (rejecting premise it must “declare that one test would be appropriate
for all situations” and thus declining to decide whether, in a case where a biological or
adoptive parent consented to the creation of a parent-like-relationship between his or her
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[J-32-2018] [MO: Mundy, J.] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
C.G., : No. 2 MAP 2018 : Appellant : Appeal from the Order of the Superior : Court at No. 1733 MDA 2016 dated : October 11, 2017 Affirming the Order v. : of the Centre County Court of : Common Pleas, Civil Division, at No. : 2015-4710 dated September 22, J. H., : 2016. : Appellee : ARGUED: May 15, 2018
CONCURRING OPINION
JUSTICE DOUGHERTY DECIDED: September 21, 2018 The trial court’s credibility findings in this case compel the conclusion C.G. lacks
standing to seek custody of Child. But in my respectful view, nothing warrants, much less
necessitates, the majority’s cramped interpretation of “parent” under 23 Pa.C.S. §5324(1),
the inevitable result of which will be the continued infliction of disproportionate hardship
on the growing number of nontraditional families — particularly those of same-sex
couples — across the Commonwealth. I therefore concur in the result only.
According to the majority, our precedent supports a conclusion parentage for
standing purposes may be proven in only four ways: biology, adoption, a presumption
attendant to marriage, or “legal parentage by contract — where a child is born with the
assistance of a donor who relinquishes parental rights and/or a non-biologically related
person assumes legal parentage[.]” Majority Opinion, slip op. at 21. Unfortunately, even
under this paradigm of parentage, it remains impossible — absent marriage or adoption
— for both partners of a same-sex couple to have standing as a parent, as only one can be biologically related to the child or contract to assume legal parentage. I see no good
reason why the Court should continue to impose such an overly-restrictive formulation,
which fails to take into account equitable principles and may ultimately frustrate the
paramount concern of protecting a child’s best interests. See Douglas NeJaime, The
Nature of Parenthood, 126 Yale L.J. 2260, 2289 (2017) (“[E]ven as principles of gender
and sexual-orientation equality have animated shifts in parental recognition, parentage
law continues to draw distinctions that carry forward legacies of inequality embedded in
frameworks forged in earlier eras.”).
The majority correctly observes the reality that what comprises a family is an
evolving concept. See Majority Opinion, slip op. at 15, citing Troxel v. Granville, 530 U.S.
57, 63 (2000) (“The demographic changes of the past century make it difficult to speak of
an average American family. The composition of families varies greatly from household
to household.”); J.A.L. v. E.P.H., 682 A.2d 1314, 1320 (Pa. Super. 1996) (“In today's
society, where increased mobility, changes in social mores and increased individual
freedom have created a wide spectrum of arrangements filling the role of the traditional
nuclear family, flexibility in the application of standing principles is required in order to
adapt those principles to the interests of each particular child.”). Yet despite recognizing
the diverse range of parental configurations that now exist, the majority interprets our
case law in a manner that continues to primarily tether parentage to traditional notions of
biology and adoption. There is a very real and grave risk to this approach, to children
and putative parents alike. See Brooke S.B. v. Eizabeth A.C.C., 61 N.E.3d 488, 499 (N.Y.
2016) (“A growing body of social science reveals the trauma children suffer as a result of
separation from a primary attachment figure — such as a de facto parent — regardless
of that figure’s biological or adoptive ties to the children[.]”) (collecting sources); NeJaime,
126 Yale L.J. at 2322 (“The harms of nonrecognition are not only practical but expressive.
[J-32-2018] [MO: Mundy, J.] - 2 Courts routinely term those who serve as parents but lack biological ties “nonparents” —
casting them as third parties who are otherwise strangers to the family.”).1
Cognizant of these potential harms, I would not interpret our case law so narrowly.
Instead, I believe there is room in our precedent — particularly in the absence of any
guidance from the legislature — to conclude an individual who lacks biological, adoptive,
or marital ties may nevertheless establish standing as a parent to seek custody under 23
Pa.C.S. §5324(1). See Sinnott v. Peck, 180 A.3d 560, 573 (Vt. 2017) (“[T]he Legislature’s
inaction to date is not an impediment to our own obligation to resolve the specific cases
before us by developing a consistent and coherent approach to defining parenthood
within the construct that the Legislature has given us and our prior case law; in fact, it
creates a more urgent need for us to act.”). Such is certainly the trend in other states.
See id. at 569-72 (detailing cases that “reinforce the modern trend” of analyzing non-
biological, non-adoptive, and non-marital parenthood by “focusing on the parties’
agreement and intentions at the time they brought a child into their home”); NeJaime, 126
Yale L.J. at 2260 (explaining “the law increasingly . . . recognizes parents on not only
biological but also social grounds” and offering comprehensive analysis of legal trends).
In line with this trend in other jurisdictions, C.G. asks this Court “to clarify that
parentage may not only be determined by biology or adoption, but also by the intent of
parties who create a child together using assisted reproductive technology, and then co-
parent that child together.” C.G.’s Brief at 21. In her view, parentage “turns on whether
1 I do not intend to minimize the significant and fundamental right of biological or adoptive parents to control the upbringing of their children. As the majority properly appreciates, the interest of parents in the care, custody, and control of their children “is perhaps the oldest [of the] fundamental liberty interest[s.]” Majority Opinion, slip op. at 11, quoting Troxel, 530 U.S. at 65. This fundamental right necessarily militates caution in expanding the category of those who may be identified as a “parent.” However, in my respectful view, the law need not deny the salience of biological or adoptive bonds to recognize the validity of additional indicia of parenthood.
[J-32-2018] [MO: Mundy, J.] - 3 the party in question had agreed to the conception of the child and whether that party had
intended to parent the child following the child’s birth.” Id. at 34. Justice Wecht would
similarly “embrace an intent-based test for parentage for persons pursuing parentage
through” assisted reproductive technology. Concurring Opinion, slip op. at 7 (Wecht, J.).
In my view, it is unnecessary at this juncture to endorse any particular new test for
establishing standing as a parent. As noted, the nature of the family in the modern era
continues to evolve, and the various alternative tests proffered above, as well as the tests
adopted by other jurisdictions, strongly suggest there may not be a one-size-fits-all
approach to adequately address each unique familial situation. See Brooke S.B., 61
N.E.3d at 500-01 (rejecting premise it must “declare that one test would be appropriate
for all situations” and thus declining to decide whether, in a case where a biological or
adoptive parent consented to the creation of a parent-like-relationship between his or her
partner and child after conception, the partner would have standing).
In any event, I am constrained to agree with the majority that “the trial court found
as fact that the parties did not mutually intend to conceive and raise a child, and the
parties did not jointly participate in the process.” Majority Opinion, slip op. at 21 n.11.
Those findings — which this Court is bound to accept, no matter how seemingly harsh
their effect — preclude a holding that C.G. has standing as a parent under any of the
proffered definitions of intent-based parentage. Accordingly, I agree that C.G. is not
entitled to the relief she seeks, and we must await another case with different facts before
we may properly consider the invitation to expand the definition of “parent” under 23
Pa.C.S. §5324(1).2
2 Parenthetically, I note my agreement with the majority that the bond between a third party and a child is not dispositive of in loco parentis standing. Furthermore, with regard to the issue of post-separation conduct, I agree “the relevant time frame to determine whether a party stands in loco parentis is when the party developed the relationship with the child with the acquiescence or encouragement of the natural parent.” Majority
[J-32-2018] [MO: Mundy, J.] - 4 Opinion, slip op. at 31. I depart from the majority, however, to the extent it implies post- separation conduct can be used against a party seeking in loco parentis status. See, e.g., Liebner v. Simcox, 834 A.2d 606, 611 (Pa. Super. 2003) (rejecting argument “that once in loco parentis status has been obtained, it can be lost” due to post-separation conduct); J.A.L., 682 A.2d at 1322 (considering post-separation conduct only to “reinforce” finding third party stood in loco parentis).