C.G. v. J.H.

172 A.3d 43

C.G., Appellant

v.J.H.

No. 1733 MDA 2016

Superior Court of Pennsylvania.

Argued June 21, 2017

Filed October 11, 2017

Laura K. Robbins, State College, for appellant.

Julia C. Rater, State College, for appellee.

BEFORE: MOULTON, SOLANO and MUSMANNO, JJ.

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. Trial 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 pre-natal 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, 2016, 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.], 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.]'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.]'s testimony and [J.H.]'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.

Citing J.A.L. v. E.P.H. , 453 Pa.Super. 78, 682 A.2d 1314, 1321 (1996), the court looked at documents for evidence of "the intent of a party to parent a child, particularly in a nontraditional family setting." Trial Ct. Op. at 5. Following the parties' commitment ceremony in 2005, J.H. wrote a note to C.G. that referred to "having a child together" and wrote her another note about their mutual "joy and excitement" following J.W.H.'s baby shower. But C.G. was not listed on J.W.H.'s birth certificate, and J.W.H. did not bear C.G.'s last name. Id. at 6. The court found that the parties "took no steps to formalize a co-parenting arrangement" and executed no documents to that effect; nor did they consider adoption by C.G. after second parent adoptions became legal in Florida in 2010. Id. J.H.'s brother and sister-in-law (not C.G.) were chosen as J.W.H.'s godparents, and C.G. was not named as J.W.H.'s guardian in the event J.H. could not care for him. Id. at 7. C.G. did list J.W.H. as her "son" and a beneficiary on her life insurance policy. Id. at 6. On the other hand, C.G. "was not listed as a parent or sponsor on school documents, but was merely an emergency contact, or ... not listed at all." Id. at 7. On medical documents, C.G. was "listed as 'partner' not 'mother' or 'parent.' " Id. C.G. initially carried J.W.H. on her medical and dental insurance and used her flexible spending account to pay for some of his prescriptions and insurance co-payments, but she removed J.W.H. from that insurance after she and J.H. separated. The court stated:

While the parties dispute who initiated the removal of the child from the insurance, the Court finds [J.H.]'s testimony credible. [J.H.] testified that [C.G.] was removing her and the child from the policy, and that the child could not remain covered by [C.G.]. Such action was consistent with [C.G.]'s post-separation conduct of removing [J.H.] and the child from her residence, and ending any financial support for the child.

Id. at 6–7.

With respect to J.W.H.'s "[p]hysical, [e]motional, and [s]ocial needs," the court found:

The pre-separation conduct of [C.G.] and [J.H.] does not indicate that they intended [C.G.] to be a parent to the child. The testimony varied greatly on the duration and nature of the care [C.G.] provided to the child. [C.G.] worked full-time Monday through Friday, and [J.H.] worked part-time two or three evenings a week and on Saturdays for approximately 10–12 hours a week. [J.H.] disputes that [C.G.] was an equal caregiver, and characterizes [C.G.]'s participation in childcare as that of a babysitter. Others characterized the interactions between [C.G.] and the child as playing, not parenting. [C.G.] would relieve the babysitter in the evenings [J.H.] worked, and cared for the child until [J.H.] arrived home. [C.G.] testified she prepared meals, went on small outings, took the child for haircuts, and would sometimes get him ready for bed in the evening. [J.H.] testified [C.G.], on occasion, refused to care for the child, and she was left to find alternative childcare.

Significantly, [J.H.] did not consult [C.G.] regarding educational or medical decisions, such as choosing and paying for preschool, activities, or selecting the child's doctor. Similarly, she was the one to schedule doctor

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