[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 WECHT DECIDED: September 21, 2018
Governed by our well-settled standard of review, I join in today’s result. Along the
way to this conclusion, my analytical journey diverges twice from the path that the learned
Majority takes. First, for purposes of adjudicating standing to sue as a parent in cases
involving assisted reproductive technologies (“ART”),1 courts must probe the intent of the
parties. Reliance solely upon biology, adoption and contracts is insufficient. Second, for
purposes of deciding in loco parentis standing, courts should consider post-separation
conduct only when they first are able to determine that the custodial parent has not
1 For purposes of the discussion at hand, I include within the ART rubric the full
variety of medical interventions designed to allow for reproduction through means other
than sexual intercourse, including in vitro fertilization, sperm and egg donation,
gestational surrogacy, and artificial insemination. See generally, Jillian Casey, Courtney
Lee, & Sartaz Singh, Assisted Reproductive Technologies, 17 GEO. J. GENDER & LAW 83,
83-85 (2016).
withheld the child from the other party. Otherwise, custodial parents effectively can
preclude most in loco parentis claims by non-custodial parties. My thinking on these two
points follows.
Parentage and Intent
In affirming the Superior Court, the Majority correctly notes that the appellate
panel’s cramped definition of parentage as including only biological and adoptive parents
overlooked the recognition of parentage by contract expounded in Ferguson v.
McKiernan, 940 A.2d 1236 (Pa. 2007) and In re Baby S., 128 A.3d 296 (Pa. Super.
2015).2 This is fine as far as it goes. But it does not go far enough. The Majority draws
too narrowly upon Ferguson and Baby S., validating solely their contractual jurisprudence
but declining to proceed further.3 While a measured approach to standing is always
appropriate,4 the Majority’s analysis , while reasonable in the main, nonetheless fails to
2 See Maj. Op. at 21. To this list, I would add that one can be found to be a parent,
regardless of biology or adoption, through the presumption of paternity, see Brinkley v.
King, 701 A.2d 176, 178-79 (Pa. 1997) (stating that a child conceived or born during a
marriage is presumed to be the husband’s child), and paternity by estoppel. See
Freedman v. McCandless, 654 A.2d 529, 532-33 (Pa. 1995) (“Estoppel in paternity
actions is merely the legal determination that because of a person’s conduct (e.g., holding
out the child as his own, or supporting the child) that person, regardless of his true
biological status, will not be permitted to deny parentage.”).
3 See Maj. Op. at 21 & n.11.
4 At the time that C.G. filed for custody, the applicable statute provided standing to
pursue custody to a parent, a person who stands in loco parentis, or a grandparent in
certain specified circumstances. 23 Pa.C.S. § 5324 (2011). In response to J.H.’s
preliminary objections, C.G. asserted standing as a parent or, alternatively, as someone
who stood in loco parentis to Child. As the Majority notes, standing in custody cases is
governed by statute. See T.B. v. L.R.M., 786 A.2d 913, 916 (Pa. 2001) (stating that
standing exists in custody cases when authorized by statute). Standing for custody
purposes implicates the fundamental liberty issue of a parent’s ability to direct the care
and custody of his or her child. See generally Troxel v. Granville, 530 U.S. 57, 66 (2000).
[J-32-2018] [MO: Mundy, J.] - 2
imagine and embrace the intent-based paradigm that ART-related child custody disputes
require.
Consider Ferguson. There, the trial court found, and this Court accepted, that the
mother approached her former intimate partner with a request for sperm donation so that
she could conceive a child via in vitro fertilization. Ferguson, 940 A.2d at 1239. Only
after the mother convinced the sperm donor that he would bear no legal or financial
responsibility for the prospective child did the donor agree to the arrangement. Id. The
donor did not pay for the in vitro fertilization, did not complete most of the paperwork, and
did not attend prenatal appointments. Id. at 1240. After mother went into premature
labor, she requested the sperm donor to join her at the hospital, where she delivered
twins. Afterward, with the mother’s agreement, the sperm donor maintained anonymity,
assumed no financial responsibility, and was not listed on the birth certificates. Id.
Indeed, the donor had little contact with the mother or twins following the birth, provided
no financial support, and assumed no paternal duties. Id. Rejecting the mother’s public
policy arguments, this Court decided that the oral contract between the mother and the
sperm donor was enforceable and held that the mother was foreclosed from seeking child
support from the donor. Id. at 1247-48.
Viewing Ferguson from the perspective of the parties’ intent, the same adjudication
would result. The sperm donor’s actions bore all the hallmarks of a clinical donation of
gametes calculated and designed to result in no parental role for the donor. The mother
acted in accordance with that intention for approximately the first five years following the
twins’ births. She did not seek financial support, and she did not attempt to involve the
sperm donor in the lives of her children. Neither the mother nor the sperm donor ever
[J-32-2018] [MO: Mundy, J.] - 3
manifested any intent for the latter to be a parent to the twins at any time before or after
the birth; in fact, both the mother and the donor expressed and acted upon the opposite
intention. And then, some five years on, the mother sued the sperm donor for child
support. It was this volte-face that our Court declined to approve. By intention, as well
as by contract, the mother’s case for support was a non-starter.
Now, consider Baby S.. There, in determining that the ex-wife was the legal parent
of the child born through ART, the Superior Court focused upon the existence of a
contract. But the appellate panel just as easily could have ruled based upon the parties’
intent. The father and ex-wife signed a contract to enter into a surrogacy with a
gestational carrier and evidenced their intent to be the legal parents of the resulting child.
Baby S., 128 A.3d at 298. The ex-wife’s communications with the gestational carrier
demonstrated the ex-wife’s intent to be a parent to the child. Id. at 299. The father and
the ex-wife chose a gestational carrier in Pennsylvania because the ex-wife could be
listed on the birth certificate without having to go through the adoption process. Id. at
298. When the pregnancy was confirmed, the ex-wife and the father moved to a new
home in order to accommodate a larger family. They attended the twentieth-week
ultrasound and acted in a way that suggested that they intended to parent the child. Id.
at 300. Only when the father and ex-wife began to experience marital difficulties did the
ex-wife begin to act in a manner contrary to that joint intention. Id. at 301. Because the
ex-wife gave every indication that she was the parent of the child conceived through ART,
the Superior Court could have relied upon her expressed and manifest intentions in order
to find that she was the child’s legal parent. That the Superior Court relied instead upon
the existence of a contract is no contradiction of this principle.
[J-32-2018] [MO: Mundy, J.] - 4
Viewed through the lens of the parties’ intentions, the Ferguson and Baby S.
cases arrive at the same destination reached via a contract-based analysis. This is
unsurprising, inasmuch as the contract evidences the intent. But the point of this exercise
is that ART requires us to hypothesize other scenarios, cases in which an intent analysis
would not foreclose a valid claim to parentage while a contract-based approach would.
Under the Majority’s formulation of parentage by contract, one becomes a parent through
use of ART and the formation of a binding contract regarding ART. Maj. Op. at 21. Fair
enough. But suppose that the members of a same-sex couple decide that one partner
will become pregnant via ART and sperm donation; it is entirely foreseeable that only the
partner being impregnated would contract with the ART facility. The second partner, who
would have no biological connection to the child, would have no contract establishing a
claim to parentage. Suppose further that no adoption is formalized, and that the couple
separates after years in which both parties diligently raise and lovingly support the
resulting child. Under the Majority’s approach, the second partner has no claim to parent
status and no standing to pursue any custody rights. Such a result is by no means
dictated by the terms or spirit of our custody standing statute, which speaks in this regard
only of “[a] parent of the child”, thus begging the question now at hand. See 23 Pa C.S.
§5324 (1). As well, such a result supplants the best interests analysis, eliminates the
focus on the child’s needs, and fails entirely to comport with contemporary family realities
and especially the circumstances of Pennsylvanians who are parenting in same-sex
relationships.
But, wait, you say. The second partner in the scenario imagined above almost
certainly would enjoy standing in custody under an in loco parentis theory. See 23 Pa
[J-32-2018] [MO: Mundy, J.] - 5
C.S. § 5324(2). The problem is not so simple. First, if the couple separates shortly after
(or before) the child’s birth, the second partner -- who fully intended to be a parent (and
this with the first partner’s knowledge and consent) -- will have no claim to in loco parentis
standing, there having been insufficient time for assumption of parental status and
discharge of parental duties. See T.B., 786 A.2d at 916-17. Second, and more
significantly, resort to an in loco parentis approach concedes the parentage claim, which
is the very issue that is at bar here. The point is that the second partner in these scenarios
should be considered a parent for purposes of standing in custody. In loco parentis
generally is considered a species of standing sought by third parties.5
In the past, Pennsylvania courts have found that same-sex partners have standing
under the in loco parentis rubric. This paradigm has evolved with time and with the
forward march of humanity. As a matter of law, a same-sex partner who participated in
the decision to bring a child into the world, to raise, to educate, to support and to nurture
that child, is no longer a third party. He or she is a parent. See Douglas NeJaime, The
Nature of Parenthood, 126 YALE L.J. 2260, 2317-23 (June 2017) (discussing the practical
and expressive harms attending non-recognition of parentage); Jillian Casey, Courtney
Lee, & Sartaz Singh, Assisted Reproductive Technologies, 17 GEO. J. GENDER & LAW 83,
117 (2016) (identifying “judicial parentage tests that consider factors beyond intent” as a
primary source of disparate treatment of same-sex couples seeking parentage). At this
5 See T.B., 786 A.2d at 916 (“A third party has been permitted to maintain an action
for custody . . . where that party stands in loco parentis to the child “); Morgan v. Weiser,
923 A.2d 1183, 1186 (Pa. Super. 2007) (“As a general rule, third parties, other than
grandparents, usually do not have standing to participate as parties in child custody
actions. An exception to this general rule exists when the third party stands in loco
parentis to the child.”).
[J-32-2018] [MO: Mundy, J.] - 6
late date, there is no defensible reason that partners in scenarios like the one sketched
above should not be recognized as parents under the standing statute. It bears emphasis
that nothing in the custody statute promulgated by our General Assembly bars such an
intent-based approach. Only the judiciary stands in the way.
Observe that members of an opposite-sex couple availing themselves of ART in a
situation identical to the one described above would not be consigned to such limbo. If
the female partner contracts for ART with a sperm donor and the male partner is not a
party to that contract and does not adopt the child, the male partner nonetheless can find
shelter (and, more importantly, standing) in the paternity by estoppel doctrine in the event
of a separation.6 The male partner would need only to show that he held the child out as
his own. He would not have to attempt intervention as a third party who seeks to stand
in the shoes of a parent. I perceive no need or reason for treating these hypothetical
parties differently when both intended fully to be parents and when both acted in
accordance with those intentions.
While I would embrace an intent-based test for parentage for persons pursuing
parentage through ART, I nonetheless concur with the Majority’s determination that C.G.
was not a parent under the facts of this case as found by the trial court.7 As the Majority
notes, the trial court found that J.H. was credible when she testified that C.G. never
intended to be a parent to Child and that C.G. did not act as a parent. Further, the trial
6 See supra n.2.
7 “We must accept findings of the trial court that are supported by competent
evidence of record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility and weight of the evidence,
we must defer to the presiding trial judge who viewed and assessed the witnesses first-
hand.” D.K. v. S.P.K., 102 A.3d 467, 478 (Pa. Super. 2014).
[J-32-2018] [MO: Mundy, J.] - 7
court credited testimony that C.G. and J.H. reached no mutual decision to become
parents. Given that there was no documentary evidence of C.G.’s intent to parent, and
given that the trial court found, consistent with the record, that C.G.’s actions were not
those of a parent, I join the Majority’s conclusion that C.G. did not have standing as a
parent pursuant to 23 Pa.C.S. § 5324.8
In Loco Parentis
Turning to the issue of in loco parentis standing, I agree with the Majority that the
bond between a child and a third party is not dispositive. Maj. Op. at 30. I further agree
that “post-separation conduct [of the third party] should not be determinative of the issue
of [in loco parentis] standing.” Id. at 32. Nonetheless, the Majority would (and in fact
does) permit the consideration of post-separation conduct as “shed[ding] light on . . .
whether the person seeking standing was ever viewed as a parent-like figure.” Id. I differ
with the Majority as to how post-separation conduct should be considered and as to the
manner in which such conduct plays a role in this case.
The Majority recognizes that there is “potential for misconduct” inasmuch as a
parent can withhold the child from the third party in an attempt to destroy an in loco
parentis relationship. Id. Though it acknowledges this concern, the Majority deems it no
bar to consideration of C.G.’s post-separation conduct, and “decline[s] to foreclose a trial
court from reviewing all relevant evidence. . . .” Id. The elasticity of this standard gives
8 With respect both to this issue and to the in loco parentis analysis, as the trial court
noted, the testimony of the parties and the witnesses was “in direct conflict.” T.C.O. at 5.
The record provides testimony that, if found credible, would support C.G.’s claims that
she intended to be a parent and that she assumed a parental role and discharged parental
duties. Similarly, there is testimony that supports J.H.’s claims to the opposite effect.
Because we are bound as a reviewing court by the trial court’s credibility findings, we
must accept the testimony of J.H. and her witnesses.
[J-32-2018] [MO: Mundy, J.] - 8
me pause. If there is evidence that the third party has assumed parental status and
discharged parental duties during the relationship, and if there is evidence that the
custodial parent purposefully withheld the child, then post-separation conduct should not
be considered for purposes of denying standing to the third party. This Court should not
countenance even the suggestion that a parent unilaterally can erase from a child’s life a
third party who, in all material respects, acted as a parent.
The Majority maintains that the trial court in this case did not premise C.G.’s lack
of standing upon her post-separation conduct. Id. Instead, the Majority opines, the trial
court “simply concluded” that the post-separation conduct was “consistent” with the trial
court’s conclusion that C.G. did not act as a parent. Id. In ruling that C.G. did not act in
loco parentis, the trial court considered that C.G. removed J.H. and Child from C.G.’s
health insurance after separation and reasoned that doing so was consistent with C.G.’s
post-separation conduct of ending any financial support and arranging for J.H. and Child
to leave the shared residence. Trial Court Opinion at 6-7. The trial court also emphasized
the fact that C.G.’s extended family did not maintain a relationship with Child following
separation. Id. at 8. Finally, the trial court devoted one of the six categories it considered
in determining in loco parentis standing to post-separation conduct. Id. at 9-10. In fact,
the trial court began that portion of its analysis with: “Perhaps most telling that [C.G.] did
not assume the role of a parent is her conduct post-separation.” Id. at 9. Given that this
case hinged upon credibility findings — in that the parties and their witnesses agreed
upon very few facts — it appears that C.G.’s post-separation conduct weighed heavily in
the trial court’s finding that C.G. lacked standing to pursue custody.
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The standard that Pennsylvania courts should follow is to foreswear consideration
of any post-separation conduct until after they determine whether the custodial parent
withheld the child from the third party. Only if the trial court decides that the parent did
not withhold the child should the court consider post-separation conduct. This will prevent
post-separation conduct from being deployed as a thumb upon the scale unless and until
the trial court determines that it was the third party, rather than the custodial parent, who
decided to limit post-separation contact. Unlike the Majority, I do not view the trial court’s
consideration of post-separation conduct here as merely confirming its decision on
standing. Instead, it appears that this consideration figured significantly as a distinct and
influential factor in the trial court’s analysis.
That said, I recognize and respect the reality that the trial court made a finding that
J.H. did not withhold the child from C.G. Id. at 10. Accordingly, even under the test that
I advance here, the trial court would have been free to consider the post-separation
conduct.
******
In sum, I think that today’s case is a missed opportunity for this Court to address
the role of intent in analyzing parental standing in ART cases. I differ as well with the
Majority’s assessment of the manner in which post-separation conduct can be considered
in weighing in loco parentis claims. These differences notwithstanding, we are bound on
appellate review by the trial court’s fact-finding and credibility determinations. Under that
familiar standard, regardless of my divergences from the Majority’s rationale, C.G. lacked
standing to pursue custody here. Accordingly, I concur in the result.
Justice Donohue joins the concurring opinion.
[J-32-2018] [MO: Mundy, J.] - 10
C.G., Aplt. v. J.H.
Combined Opinion