Who’s Your Parent?: Defining Parentage in a World of Changing Family Structures

The concept of “family” is ever changing and developing. As family structures broaden, the people who care for and raise children extend more and more beyond just biological parents. Grandparents, same-sex parents, step-parents, and many others are developing strong parental bonds with children and fighting to maintain those bonds through the courts. 

The first step for any third party (i.e. not a biological or adoptive parent) looking to establish or confirm custodial rights to a child is for that third party to establish standing to bring a custody matter to court. Section 5324 of the Pennsylvania Divorce Code governs standing in custody matters. The statute was amended recently to permit additional individuals to assert their rights in response to rampant drug and alcohol addiction issues that have left far too many children in need of care. 

Erasing prior requirements that grandparents could only seek custody of grandchildren if the children’s parents were deceased or separated, Section 5324 now specifically permits grandparents to seek custody of their grandchildren when they can show (1) their relationship with the child began with the consent of the parents or a court order; (2) their assumption of responsibility for the child, or a willingness to assume such responsibility; and (3) the child has been deemed dependent, or has lived with the grandparents for twelve (12) consecutive months, or is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity. This provision specifically allows grandparents to step in when their children cannot care for their grandchildren, whether because of drugs, alcohol, mental health, or any other incapacity, even if they had not previously acted as parents to the child or children.

Importantly, the statute was also amended in 2018 to allow standing to those who can show (1) their assumption of responsibility for the child, or a willingness to assume such responsibility; (2) a “sustained, substantial and sincere interest in the welfare of the child;” and (3) that neither parent has any form of care and control of the child. Especially prevalent in situations where other family members are caring for children whose parents are unavailable because of drug use and addiction, this section broadens the statute to help keep children with family or close friends, and out of the foster care system when their parents are not able to care for them.

Section 5324 also confers standing to individuals who stand “in loco parentis” to the children, which translates to “in the place of a parent.” This type of standing requires a party to show that he or she has assumed parental duties over a child, and that the child’s parent has discharged parental duties to the third party. See Peters v. Costello, 891 A.2d 705 (Pa. 2005); T.B. v. L.R.M. 786 A.2d 913 (Pa. 2001). This enables individuals who have cared for children, performed all of the regular parenting duties and roles, and have taken up parenting responsibilities that the child’s parent has relinquished to that individual to seek custodial rights over the child, even if there is no biological connection between that person and the child.

In loco parentis status is often raised by step-parents or romantic partners of a parent after their relationship sours and the step-parent or romantic partner is no longer living with the child or, in the worst case, when the legal parent deliberately cuts the former partner out of the child’s life. There is no requirement, though, that a party seeking in loco parentis status be a romantic partner to a legal parent, or even that the party resides with the child. In the reality of today’s families, grandparents, aunts, uncles, siblings, and friends often step up and step in to fill parenting roles when children are in need, and the courts are able to confirm those roles.

However, in loco parentis status is not lightly conferred. In a recent Pennsylvania Supreme Court case, C.G. v. J.H., 193 A.3d 891 (Pa. 2018), the Court found that C.G., the former same-sex partner to the child’s biological mother, did not have in loco parentis standing to seek custody. In that case, C.G. waited four years after J.H. and the child moved from Pennsylvania to Florida before she filed her Complaint for Custody, and was not able to show a shared intent of the parties to create a parental relationship between C.G. and the child. While this decision may not seem like a step forward for third parties, it does highlight the importance of the family unit, which a Court will not lightly intrude upon. The Court in C.G. v. J.H. also looked at C.G.’s conduct after the parties broke up. Although this post-separation conduct cannot be determinative as to whether or not C.G. is a parent, it can affect the analysis, as someone acting as a parent would continue those parental duties and contact even after the parents’ romantic relationship ended (unless the legal parent explicitly bars that ongoing contact).

It is important to note that Pennsylvania cases do not focus on the bond between the third party and the child in awarding that party standing in custody. New Jersey, however, relies heavily upon this bond in establishing third party standing, or “psychological parentage.” There, a third party must show the legal parent consented to the relationship, the third party lived with the child and performed parental functions for the child, AND that a parent-child bond was forged between the child and the third party. See V.C. v. M.J.B., 748 A.2d 539 (N.J. 2000). This generally requires an expert witness to perform a bonding evaluation between the third party and the child.

At the end of the day, the Court has an interest in ensuring that children are well cared for and that their best interests are being met. As society changes and family structures become less traditional, the courts and the legislature and working to incorporate those changes into the law, and to make sure that all third parties who take on the role of parent have the ability to maintain that role for the best of the children.

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