from the Order Entered September 22, 2016 In the Court of
Common Pleas of Centre County Civil Division at No(s):
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
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.
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.
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).
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,  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).
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).
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.
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)).
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
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.
J.A.L. v. E.P.H., 682 A.2d 1314, 1321 (Pa. Super.
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
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.
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
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
appointments, child care, and coordinated extracurricular
activities. While [C.G.] occasionally attended activities and
appointments, or provided care, she did not have exclusive
responsibility for the child or assume the role of a
decision-maker for the child. The [c]ourt finds [J.H.] never
encouraged [C.G.] to assume the status of parent to her
child, nor did [C.G.]'s contributions amount to that of a
Trial Ct. Op. at 7-8.
court found that J.H. "paid for all aspects of the
conception process." Trial Ct. Op. at 8. The parties
"split household expenses, " but J.H. purchased
items needed specifically for J.W.H.'s well-being,
including diapers, clothing, and food. Id. The court
found: "The evidence presented does not establish [C.G.]
assumed financial responsibility for the child. Instead,
[C.G.] financially contributed to the household overall, and
such contributions provided a tangential benefit to the
the heading "Perception, " the court found:
There is also a dispute regarding whether the parties held
the child out to others as their child, rather than just
[J.H.]'s child. Some witnesses perceived both parties to
be parents of the child, while others testified that only
[J.H.] was a parent of the child. The child referred to
[C.G.]'s parents as "Grampa Joe" and
"Grandma Ann." [C.G.'s children] testified that
they were told the child was their brother, though this is
disputed by [J.H.]. The family would vacation and celebrate
special occasions together, and send out a Christmas card as
a family. These extended family members, however, have not
reached out to the child since he moved to Pennsylvania with
the exception of one birthday card. Such actions do not
indicate a familial relationship; rather, it appears that
such titles were created as a way for the child and
[C.G.]'s family to easily refer to one another, and such
interactions were incidental to [C.G.] and [J.H.] being in a
Trial Ct. Op. at 8.
S.A. v. C.G.R., 856 A.2d 1248, 1250 (Pa. Super.
2004), appeal denied sub nom. Ash v. Roberts, 877
A.2d 459 (Pa. 2005), the court looked for evidence of
"strong psychological bonds" showing that C.G.
"provided care, nurture, and affection, assuming in the
child's eye a stature like that of a parent." Trial
Ct. Op. at 9. Noting that it did not receive the type of
extensive bonding evidence that might be provided on the
merits of a custody proceeding, the court nevertheless
concluded that the record did "not establish a
parent/child relationship exists between the child and
[C.G.]." Id. The court found "that the
child is well-adjusted to living in Pennsylvania with [J.H.],
and that the child does not cry for, request to see, or
otherwise reach out for [C.G.] as one would expect if a
parent/child relationship was established between the child
and [C.G.]." Id.
the court found:
Perhaps most telling that [C.G.] did not assume the role of a
parent is her conduct post-separation. [J.H.] and the child
moved to a separate residence in Florida in February of 2012,
after [C.G.] made them leave when the relationship ended.
[C.G.] saw the child approximately once a week between
February and July 2012, and would attend some of the
child's extracurricular activities. Since July 2012,
[C.G.] testified that she has only seen the child once, in
March of 2014 when [J.H.] went to Florida, but has spoken to
him on the phone occasionally. [C.G.] testified she has not
paid any child support to [J.H.], but did pay for one week of
science camp and one month of child care in 2012.
Additionally, [C.G.] sends the child occasional care packages
of little monetary value, yet maintains she has been willing
to pay child support pursuant to a written agreement.
Further, [C.G.] has not requested to be involved in
educational, medical, or day-to-day decisions involving the
child, and [C.G.] never requested copies of documents related
to such things. Such minimal contact for nearly four years is
not suggestive of a person who assumed parental status and
discharged parental duties.
[C.G.] maintains [J.H.] used the child as leverage for a
settlement on the house. [C.G.] acted under the impression
that once she paid [J.H.] for her interest in the house,
[J.H.] would allow her to see the child. The [c]ourt,
however, is not convinced that [J.H.] withheld the child from
[C.G.]. Rather, [J.H.] allowed occasional contact by phone,
provided updates and photographs through email and text
messages, and accepted nominal gifts from [C.G.]. [J.H.]
describes these interactions as the same that she shared with
her other friends, and as consistent with [C.G.]'s level
of involvement in the child's life. [J.H.] even provided
the opportunity for a face-to-face visit when they were in
Florida in 2014. Conversely, [C.G.] never flew to
Pennsylvania to visit the child or assist [J.H.] in the
discharge of parental duties. Once [C.G.] and [J.H.] no
longer resided together, [C.G.]'s financial contributions
all but ended, as her prior contributions were mostly in the
nature of household expenses. Therefore, the parties'
conduct post-separation is consistent with the finding that
[C.G.] was not a parent to the child.
Trial Ct. Op. at 9-10 (footnote omitted).
end, the trial court found that C.G. did not stand in
loco parentis to J.W.H. It stated:
The testimony and evidence clearly indicates [C.G.] played a
role in the child's early life, but the totality of the
circumstances do not indicate that [C.G.] "stood in the
shoes" of a parent. Rather, [C.G.] participated in minor
activities and provided financial support incidental to
living with [J.H.].
Trial Ct. Op. at 5. C.G. "did not assume key financial
or caretaking parental duties or a decision-making role in
the child's life." Id. at 10. Although the
court acknowledged that around the time of J.W.H.'s
birth, J.H. wrote two affectionate notes regarding the child
and that C.G. made J.W.H. a beneficiary on her life
insurance, the court concluded, "Two letters and one
policy, coupled with [J.H.]'s testimony that [C.G.] never
agreed to have a child, but merely tolerated the idea of
[J.H.] having a child, do not establish [C.G.] as a mother to
the child." Id. at ...