C.G. v. J.H.

172 A.3d 43
Superior Court of Pennsylvania·Decided October 11, 2017·No. No. 1733 MDA 2016·Published·Cited by 29 cases

Opinions

OPINION BY

SOLANO, j.:

Appellant C.G. appeals from the order sustaining Appellee J.H.’s preliminary objection .to C.G.’s standing to seek custody of a ten-year-old child, J.W.H., who is J.H.’s biological son. We affirm.

J.W.H. was born in Florida in October 2006, while C.G. and J.H. lived together as a same-sex couple. The child was conceived by intrauterine insemination. C.G. and J.H. continued to live together for about five more years, and they then separated. J.H. and J.W.H. moved to a separate residence in Florida in February 2012 and moved to Pennsylvania in July 2012. Mai Ct. Op., 9/22/16, at 1-2.

C.G. instituted this action on December 8, 2015, seeking shared legal custody and partial physical custody of. J.W.H. She averred that although J.H. is the biological mother of the child, C.G. “also acted (and acts) as a mother to the minor child as well, as the minor child was conceived by mutual consent of the- parties, with the intent that both parties would co-parent and act as mothers to the minor child.” Custody Compl. at ¶ 3. C.G. stated that the child lived with her and J.H. from his birth in 2006 until the, parties’ separation in January or February of 2012. Id.; see N.T., 2/5/16, at 5-6 (correcting date of separation). C.G. alleged that both she and J.H. participated in selecting a sperm donor and that C.G. “served daily as the minor child’s mother, by attending prenatal appointments, participating in the birth of the minor child, cutting the cord when the minor child was born, and otherwise serving as [the child’s] mother along with [J.H.].” Custody Compl. at ¶ 7(B), (C).

On January 6, 2016, J.H. filed preliminary objections that challenged C.G.’s standing to seek custody, Specifically, J.H. sought dismissal of the complaint pursuant to Pa.R.Civ.P. 1028(a)(5) (“lack of capacity to sue ....”) and (4) (“legal insufficiency of a pleading (demurrer)”). J.H. disputed the averments in C.G.’s custody complaint. J.H. alleged that the decision to have a child was hers alone, C.G. did not want to have another child,1 and J.H. alone selected the sperm donor and paid all costs associated with the intrauterine insemination. Defendant’s Prelim. Objs. at ¶ 12(a)-(c). In addition, J.H, stated that she has acted as the child’s sole parent since his birth, and C.G.’s role was “solely that of [J.H.] ’s, girlfriend from the child’s birth until November 2011, when [C.G.] cheated on [J.H.].” Id. at ¶ 12(e). J.H. averred that she has provided almost all of the financial support for the child and made all decisions regarding the child’s education, medical care, and development. Id. at ¶ 12(f)-(g). J.H, said that she and the child moved out of C.G.’s Florida house in February 2012 at C.G.’s request and moved to Pennsylvania at-the end of July 2012. Id. at ¶ 12(i). According to J.H., after she and the child moved to. Pennsylvania, C.G. spoke minimally to the child and provided almost no financial support. Id. at ¶ 12(j).

C.G. filed a response to the preliminary objections, asserting that she had standing under the Child Custody Law both as a parent of the child, see 23 Pa.C.S. § 5324(1), and as a person who stood in loco parentis to the child, see id. § 5324(2).2

On February 5, April 12, and June 20, 201.6, the trial court held hearings on the preliminary objections, during which it received conflicting testimony from sixteen witnesses about C.G.’s role in the child’s life. On September 22, 2016, the trial court issued an opinion and order that sustained J.H.’s preliminary objection to C.G.’s standing under Rule 1028(a)(5) and dismissed the custody complaint with prejudice. The court dismissed J.H.’s demurrer under Rule 1028(a)(4) as moot.

The court held that C.G. did not have standing as a parent of J.W.H., explaining: “[b]oth parties agree that at the time and place of the child’s birth, [C.G.] was not considered a parent of the child because same-sex marriage and second parent adoption was not yet recognized in Florida in 2006.” Trial Ct. Op. at 3. In the court’s View, the controlling question therefore was whether C.G. stood in loco parentis to J.W.H. In turning to that question, the court recognized that “[a] domestic partner with no biological connection to a child may stand in, loco parentis to a child,” id. at 4, and that it therefore needed to consider “whether the third party lived with the child and the natural parent in a family setting, irrespective of its traditional or nontraditional composition, and developed a relationship with the child as a result of the participation and acquiescence of the natural parent.” Id. (quoting Bupp v. Bupp, 718 A.2d 1278, 1281 (Pa. Super. 1998)).

The court then engaged in an extensive review of the evidence from the hearing. The court began:

The issue before the Court is whether [C.G.], assumed parental duties and obligations for the child, as alleged by [C..G.]j or merely was involved in the child’s life as [J.H.] ’s significant other, as argued by [J.H.]. [J.H.] was added to the deed to [C.G.J’s house, and a joint home equity line of credit was obtained by the parties to renovate the residence prior to the child’s birth. The parties agree that [J.H.] went through the insemination process during their relationship while the parties were living together. [J.H.] and child lived with [C.G.] in Florida for nearly six years of his life, and the child referred to [C.G.] as “Mama Cindy” and [J.H.] as “Mom.” The parties had a commitment ceremony, baby shower, and both parties were present for the child’s birth and christening.
Outside these basic facts [C.G.J’s testimony and. [J.H.J’s testimony is often in direct conflict. ... [C.G.] testified that she is a parent,, acted like a parent, and was held out as a parent to others and to the child, while [J.H.] • claims [C.G.] had no desire or intent to parent the child, and all interactions between [C.G.] and the child were merely incidental to [C.G.] and [J.H.] ’s relationship.

Trial Ct. Op. at 5. The- court said that it had to resolve this “direct conflict” by assessing the credibility of the witnesses- and the weight of the testimony. Id. The court engaged in that task by methodically discussing six categories of evidence: documents; testimony regarding care for J.W.H.’s physical, emotional, and social needs; evidence regarding financial support; “perception” evidence; evidence regarding any bond between J.W.H. and C.G.; and “post-separation conduct.” Id. at 5-10.

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C.G. v. J.H., 172 A.3d 43 (Pa. Ct. App. 2017).

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