J.A.L. v. E.P.H.

• Decision Date: 19 September 1996
• Citation: 453 Pa.Super. 78,682 A.2d 1314
• Parties: J.A.L., Appellant, v. E.P.H.
• Court: Pennsylvania Superior Court

Page 1314

682 A.2d 1314

453 Pa.Super. 78

J.A.L., Appellant, v. E.P.H.

Superior Court of Pennsylvania.

Argued May 23, 1996.

Filed Sept. 19, 1996.

Bernard D. Faigenbaum, Philadelphia, for appellant.

Joni J. Berner, Philadelphia, for appellee.

Before BECK, KELLY and BROSKY, JJ.

BECK, Judge:

We are asked to decide whether appellant J.A.L., the former lesbian life partner of appellee E.P.H., has standing to petition for partial custody of the child born to E.P.H. during their relationship. We conclude that the trial court erred in denying standing to J.A.L. Therefore, we reverse and remand for consideration of appellant's petition for partial custody.

Appellant J.A.L. and appellee E.P.H. entered into a lesbian relationship in 1980 and began living together as life partners in 1982, purchasing a home together in 1988. From quite early in the relationship, E.P.H. wished to have a child. Following several years of discussion, the parties agreed that E.P.H. would be artificially inseminated to attempt to conceive a child whom the parties would raise together. Together, E.P.H. and J.A.L. selected a sperm donor and made arrangements for a contract between E.P.H. and the donor whereby the donor relinquished his parental rights in any child E.P.H. might bear.

In August 1989, the insemination process began. The inseminations occurred in J.A.L.'s and E.P.H.'s home. For each insemination, the donor would produce the sperm in one room and J.A.L. would receive the sperm and take them to E.P.H. in another room, where J.A.L. would perform the insemination. This procedure was repeated several times each month until E.P.H. became pregnant in October, 1989, then resumed in 1990 after E.P.H. had a miscarriage in December, 1989. In September, 1990, E.P.H. again became pregnant. During the pregnancy, J.A.L. accompanied E.P.H. to doctor's visits and attended childbirth classes with her. E.P.H. successfully carried the child to term, and J.A.L., as well as two friends of E.P.H., was present at the birth of the child, G.H., in June, 1991. In registering the child's birth, E.P.H. gave J.A.L.'s surname as the child's middle name; E.P.H. subsequently had the child's middle name legally changed.

During E.P.H.'s pregnancy, E.P.H. and J.A.L. consulted with an attorney regarding the status of the child. The attorney prepared drafts of several documents for the parties' consideration. The first document was a Nomination of Guardian in which E.P.H. named J.A.L. as the guardian of the child in the event of E.P.H.'s death or disability. The document included the following statement This nomination is based on the fact that [J.A.L.] and I jointly made the decision that I should conceive and bear a child that we would then jointly raise. It is our intention that [J.A.L.] will establish from birth a loving and parental relationship with the child. Furthermore, my child will live with this adult from birth and will look to her for guidance, support and affection. It would be detrimental to my child to deprive my child of this established relationship at a time when I am unable to provide the security and care necessary to my child's healthy development.

The second document prepared for the parties was an Authorization for Consent to Medical Treatment of Minor, permitting J.A.L. to consent to medical or dental treatment of the child. The attorney also prepared a Last Will and Testament for each party, providing for the other party and the child. E.P.H.'s will also included a clause appointing J.A.L. as the guardian of the child, stating:

I have specifically and purposefully named [J.A.L.] as primary guardian of my child as I intend for the bond between my partner, [J.A.L.], and my child to be of primary importance and strength. [J.A.L.] and I jointly decided that I would conceive and bear my child. We intend to raise the child together as a family. It is my belief that the continuation of the parent-child relationship between [J.A.L.] and my child will be essential to my child's well-being, and that it will be in the child's best interests to remain with [J.A.L.].

The final document prepared by the attorney was a co-parenting agreement which set forth the parties' intention to raise the child together, to share the financial responsibility for the child, to make decisions about the child jointly, and for J.A.L. to become a de facto parent to the child. The agreement also provided that in the event of the parties' separation, they would share custody, continuing to make major decisions about the child jointly and splitting the financial responsibility for the child's support.

Shortly before the child's birth, the parties executed the nomination of guardian, the authorization for consent to medical treatment and the wills. ¹ J.A.L. refused to execute the co-parenting agreement, which the attorney advised the parties was not enforceable in Pennsylvania.

After the birth, E.P.H., J.A.L. and the child lived together in the house owned by E.P.H. and J.A.L. E.P.H. was the primary caregiver to the child, but J.A.L. assisted with all aspects of the care of the baby, particularly during the first few weeks after the birth while E.P.H. recovered from a caesarean section. J.A.L. also cared for the baby alone from time to time when E.P.H. went out. During E.P.H.'s maternity leave, J.A.L. provided the primary financial support for the household, and throughout 1991 she continued to provide the majority of the household's income because E.P.H. initially returned to work only part-time.

In late 1991, serious problems developed in the relationship between E.P.H. and J.A.L., and in the spring of 1992, E.P.H. left the parties' home, taking the child with her and informing J.A.L. that she intended to raise the child as a single parent. For the first year of the separation, by agreement of the parties, J.A.L. took the child for visits twice a week, one on a weekday afternoon and the other for a full day on the weekend. During the second year of the separation, E.P.H. reduced the visits, still allowing one afternoon visit per week, but limiting the full-day weekend visits to once every two weeks. On the days of her visits, J.A.L. would pick up the child, who was then one to two years old, either from day care (for the weekday visits) or E.P.H.'s residence (for the weekend visits) and would return the child in the evening. During the visits, J.A.L. would feed the child, arrange for naps, provide toys and activities, and generally care for the child. Both parties testified that the child enjoyed and looked forward to these visits and felt an attachment to J.A.L. E.P.H. also testified that the child has similar visits and relationships with other adult "special friends."

In April, 1994, E.P.H. advised J.A.L. that she no longer wished to have any contact whatsoever with J.A.L. and that she also wished to end the visits between J.A.L. and the child. E.P.H. testified that she took this action because she felt that J.A.L. was trying to establish a parental relationship with the child and to undermine E.P.H. as parent and that this could be harmful to the child. Although J.A.L. sought to continue seeing the child, the parties were unable to come to any agreement to continue J.A.L.'s visits, and in February, 1995, J.A.L. initiated this action for partial custody.

In response to J.A.L.'s complaint for partial custody, E.P.H. filed preliminary objections challenging J.A.L.'s standing. Following a hearing at which both parties and several other witnesses testified, the trial court granted the preliminary objections and dismissed the complaint for partial custody based upon J.A.L.'s lack of standing to bring such an action. This appeal followed.

In reviewing the trial court's determination, we are mindful of our proper scope and standard of review:

[t]he scope of review of an appellate court reviewing a child custody order is of the broadest type; the appellate court is not bound by the deductions or inferences made by the trial court from its findings of fact, nor must the reviewing court accept a finding that has no competent evidence to support it. However, this broad scope of review does not vest in the reviewing court the duty or the privilege of making its own independent determination. Thus, an appellate court is empowered to determine whether the trial court's incontrovertible factual findings support its factual conclusions, but it may not interfere with those conclusions unless they are unreasonable in view of the trial court's factual findings; and thus, represent a gross abuse of discretion.

McMillen v. McMillen, 529 Pa. 198, 202, 602 A.2d 845, 847 (1992) (citations omitted).

The trial court in this case determined that because J.A.L. was neither a biological nor an adoptive parent of the child, she must be viewed as a "third party" in her attempt to obtain partial custody and thus would have standing to seek custody only if she stood in loco parentis to the child. The court went on to conclude that J.A.L. did not stand in loco parentis to the child because E.P.H. never intended to grant her that status and J.A.L. understood that she was considered only to be a friend, not a parent, of the child. Accordingly, the trial court held that J.A.L. lacked standing to seek partial custody of the child. We hold that the trial court's application of the concept of standing in this custody matter was overly technical and mechanistic and that it was error to preclude J.A.L. from seeking a judicial determination of her claim for partial custody of the child.

The concept of standing, an element of justiciability, is a fundamental one in our jurisprudence: no matter will be adjudicated by our courts unless it is brought by a party aggrieved in that his or her rights have been invaded or infringed by the matter complained of. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975); In re Mengel, 287 Pa.Super. 186, 429 A.2d...