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October 2005 PENNSYLVANIA APPEALS COURT AFFIRMS CUSTODY FOR CO-PARENT OVER BIOLOGICAL MOM ON BEST-INTEREST GROUNDS October 2005 Seizing upon recent doctrinal developments in who are said to have a prima facie right to would become a multi-year effort to exclude cases involving custody claims by stepparents, custody of their children that could only be de- Jones from the children’s life.’” a unanimous three-judge panel of the Pennsyl- feated by showing the biological mother to be The court took note of Jones’s contention that vania Superior Court upheld a trial judge’s rul- unfit. But the Pennsylvania courts have de- the law must change further to reflect the reality ing that primary parental custody of two young parted from this traditional approach in cases of same-sex families, but concluded that it was twins should go to their biological mother’s involving stepparents, and the Superior Court not necessary to go so far in order to upheld former same-sex domestic partner, because the panel was ready to extend this departure to the Judge Scott’s order in her favor. “Jones asserts best interest of the children outweighed their context of same-sex partners. The leading that the law is changing. As the concept of fam- biological ties to their birth mother. Jones v. precedent is Charles v. Stehlik, 744 A.2d 1255 ily evolves the law will evolve along with it. Jones, J. A25041/05, No. 271 EDA 2005 (Pa. (Pa. 2000). Jones claims that in the situation presented Super Ct.) (“non-precedential decision”). The Under this newer approach, a non-biological here, where two people together decide to have September 26 per curiam ruling affirmed a de- parent who has bonded with a child and has an a child, although only one is the biological par- cision issued last January by Bucks County “in loco parentis” relationship with that child ent, and they both live together and parent the Common Pleas Judge Susan Devlin Scott. could seek primary custody without having to children together following their birth, the stan- Patricia Jones and Ellen Boring Jones began prove that the biological parent is unfit to have dard should be a simple best interests analysis, living together as partners in 1988. They de- custody. However, the non-biological parent and that the law should abandon both the pre- cided to have children through donor insemina- has the difficult task of showing by clear and sumption in favor of the biological parent and tion. Ellen gave birth to twin boys in December convincing evidence that the child’s best inter- the ‘clear and convincing’ standard of proof. 1996, and the women and their children lived est will be served by an award to the non- Since the judge determined, and we agree, that together as a family until January 2001, when biological parent. The usual standard of proof there was ‘clear and convincing evidence’ in Ellen moved out of Patricia’s house with the in civil cases is a preponderance of the evi- this case, we do not reach that issue today.” children. According to the court’s opinion, El- dence, so the requirement of clear and convinc- The court seemed to think it was not really len sued Patricia for child support, but she took ing evidence is intended to impose a greater breaking new ground, since it designated the various steps to reduce and then try to eliminate burden on the non-biological parent than would decision as “non precedential” and did not the twins’ contact with their co-parent. (The apply to a custody dispute between a child’s publish the text on its website, but actually the court refers to the parties as Jones and Boring, biological parents (mother and father). extension of the stepparent approach to same- but the official title of the case is Jones v. Jones, The Superior Court found that Judge Scott sex couples is a significant move, since it low- because during their partnership Boring had had faithfully followed this approach. “While ers the evidentiary barrier that co-parents taken Jones’ last name, which was also the last the scale was tipped in favor of Boring,” wrote would face in some other states where they name given to the twins.) the Superior Court, “Jones produced clear and would have to show that a biological parent is Patricia Jones then sued to have primary cus- convincing reasons to even the scale and then unfit before they could seek primary custody of tody switched to her, arguing that it was in the tip it on her side. Jones did not establish that the children. The decision does continue a twins’ best interests to have continued contact Boring was unfit, and was not required to do so, trend in the Pennsylvania courts of extending with both of their mothers and that she would but Jones did clearly and convincingly estab- more legal recognition to LGBT families. facilitate this while Ellen was trying to prevent lish that the children would be better off with Jones’ case drew the support of several it. Judge Scott conducted a thorough inquiry, her as the primary custodian and that the chil- LGBT public interest firms, including Lambda according to the Superior Court’s opinion, and dren’s relationship with both parties would be Legal, the National Center for Lesbian Rights, came to the conclusion that Patricia was cor- better fostered if custody were awarded to and the Center for Lesbian and Gay Civil rect. Although Ellen was not an unfit mother, Jones.” Rights (a Pennsylvania public interest firm). primary residence with Patricia would be better Judge Scott had found that “Boring was in- Maureen Gatto, a Pennsylvania lawyer, served for the twins, based not only on Patricia’s com- clined ‘to attempt to exclude Jones’ and the as local counsel on the case. A.S.L. mitment to preserve their relationship with both court cautioned that Boring ‘can’t totally con- mothers, but also because of Patricia’s greater trol the children’s lives without any input from LESBIAN/GAY stability and various problems with Ellen, in- the other person that was a parent.” After the cluding difficulty holding down a job and parents separated, “Boring attempted to re- LEGAL NEWS drinking problems. move ‘Jones’ from the children’s names after Traditionally, custody disputes between bio- failing to prevail in an effort to change the boys’ California Legislature First In the Nation to logical parents and third parties have been names to her maiden name, which, as Judge Approve Same-Sex Marriage But Governor heavily weighted in favor of biological parents, Scott put it, ‘...was an early attempt at what Quickly Announces Veto LESBIAN/GAY LAW NOTES October 2005 The California Assembly voted 41–35 on Sep- Editor: Prof. Arthur S. Leonard, New York Law School, 57 Worth St., NYC 10013, 212–431–2156, fax 431–1804; e-mail: [email protected] or tember 6 to approve the Religious Freedom and [email protected] Civil Marriage Protection Act (RFCMP Act), Contributing Writers: Alan J. Jacobs, Esq., NYC; Sharon McGowan, Esq., NYC; Tara Scavo, Esq., NYC; Daniel R Schaffer, NYC; Robert Wintemute, Esq., King’s which had been approved in the Senate the pre- College, London, England; Leo Wong, Esq., NYC; Eric Wursthorn, NYLS ‘07. vious week on a 21–15 vote. The measure was Circulation: Daniel R Schaffer, LEGALGNY, 799 Broadway, Rm. 340, NYC 10003. 212–353–9118; e-mail: [email protected]. Inquire for rates. intended to adopt, for the first time in U.S. his- LeGaL Homepage: http://www.le-gal.org Law Notes on Internet: http://www.qrd.org/qrd/www/usa/legal/lgln tory by legislative action, a gender-neutral defi- ©2005 by the LeGaL Foundation of the Lesbian & Gay Law Association of Greater New York ISSN 8755–9021 194 October 2005 Lesbian/Gay Law Notes nition of marriage specifically intended to allow 6th Circuit Says Sham Marriage Destroyed crepancies, along with the fraudulent marriage, same-sex couples to marry. But just a day later, Asylee’s Credibility were sufficient to support an adverse credibility a spokesperson for Governor Arnold Schwar- finding based on substantial evidence, and it zenegger announced that he would veto the Entering a sham marriage to obtain a U.S. im- denied Safadi’s petition for review of the BIA’s measure “out of respect for the will of the peo- migrant visa evidences a lack of credibility on decision. Alan J. Jacobs ple,” referring to the passage in 2000 of Propo- the part of the applicant, which is sufficient to sition 22 with the support of 61% of the voters, bar asylum when the same person later claims N.Y. Family Court Invites Reconsideration of Alison and when the bill was finally sent to him, he ve- that he fears persecution in his home country D. toed it on Sept. 29. However, as part of his veto for being gay. Safadi v. Gonzales, 2005 WL message, the governor indicated that he 2175937, 2005 Fed.App. 0682N (6th Cir.Aug. In one of those heartbreaking cases in which strongly supports California’s domestic part- 9, 2005). trial courts bound by unfortunate appellate nership legislation and will oppose any efforts Saleh Safadi, a Jordanian citizen, entered in precedents are constrained from “doing the to “rollback” existing rights for same-sex cou- the U.S. in 1988 on a student visa to attend right thing,” Suffolk County (N.Y.) Family ples, thus implicitly stating his opposition to Wichita State University. A year later,he moved Court Judge Barbara Lynaugh ruled that the two proposed constitutional amendments that to Detroit.
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