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C.G. v. J.H.

Superior Court of Pennsylvania

October 11, 2017

C.G. Appellant

         Appeal from the Order Entered September 22, 2016 In the Court of Common Pleas of Centre County Civil Division at No(s): 2015-4710



          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., 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 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 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 parent.

Trial Ct. Op. at 7-8.

         The 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 child." Id.

         Under 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 relationship.

Trial Ct. Op. at 8.

         Citing 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.

         Finally, 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).

         In the 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 ...

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