The Oldest Law Journal in the United States 1843-2017 philadelphia, MONday, APRIL 17, 2017 VOL 255 • NO. 73

Family Law In Loco Parentis Status Should Start With Consent

By MICHAEL E. BERTIN The Superior Court in K.W. re- Special to the Legal Michael E. Bertin is a partner at the minds all that the court may sua he recent case of K.W. law firm of Obermayer sponte determine whether the ap- Rebmann Maxwell & v. S.L. and M.L. v. G.G., Hippel. He is co-author peal is from an appealable order. 2017 Pa. Super. 56 of the book “Pennsylvania In this case, the Superior Court T Child Custody Law, (March 6), addresses two impor- Practice, and Procedure.” did just that. tant issues for family court prac- Bertin is a fellow of the The facts of this case, in part, titioners and the bench to take American Academy of Matrimonial Lawyers, are as follows:­ the father and a former chair of the family law section of the note. First, it addresses the col- Philadelphia Bar Association, the current co- mother dated briefly, but stopped lateral order doctrine and then the chair of its custody committee,­ and holds the offi- prior to the birth of their child. cer position of second vice chair of the family law issue of in loco parentis standing section of the Pennsylvania Bar Association. According to the opinion, the in child custody matters. Bertin can be reached at 215-665-3280­ or mother did not directly inform the [email protected]. In family law cases, practitio- father of her pregnancy and con- ners and ­litigants are often faced tacted Bethany Christian Services with interim ­orders and whether the collateral order doctrine. (BCS) in order to place the child they may be appealed. As reit- Pursuant to Pa.R.A.P. 313(b): “A for ­adoption. Two days after the erated in the K.W. case: “It is collateral order is an order sepa- child was born, BCS placed the ­well-settled that, an appeal lies rable from and collateral to the child in the care of the appellees.­ only from a final order, unless main cause of action where the Shortly before the child’s birth, permitted by rule or statute.’” right involved is too important to BCS attempted to contact the fa- Pursuant to Pa.R.A.P. 341(b), a be denied review and the question ther through Facebook messages final order, generally, is an order presented is such that if review is and friend requests,­ which the that disposes of all claims and postponed until final judgment father claimed were not delivered all parties. An interim order is in the case, the claim will be due to spam filters. BCS also sent appealable if it qualifies under irreparably lost.” letters to the father approximately a month after the child was born. action in a child custody case, of “the importance of permitting Upon the father receiving the let- and because the right to inter- parents to challenge standing in ters, he contacted BCS to set up a vene in custody cases implicates child custody cases, in order to meeting. A month thereafter, the Pennsylvania’s ‘paramount in- protect the constitutional rights father ­informed BCS that he did terest in the welfare of ­children, of parents.” As highlighted by not want the child to be adopted. and, as a result, in identifying the Supreme Court in D.P., the The Superior Court in K.W. the parties who may participate Child Custody Act “facilitates perfectly describes the proce- in child custody proceedings.’” early dismissal of complaints, dural history in the case as “con- The Superior Court acknowl- thereby relieving families of the voluted.” Basically, after a num- edged the distinguishing aspect­ burden of ­litigating their mer- ber of proceedings, transfers of of K.C. in the third prong, as its where a sufficient basis for venue, and numerous filings, at intervention must be appealed standing absent.” In complet- issue was the father’s prelimi- within 30 days of the order. ing its analysis of the collateral nary objections to the appellees’ order doctrine as it applies to claim that they had standing to the present case, the Superior file for custody. The trial court Often overlooked when Court stated: “If we quash this denied the father’s preliminary analyzing in loco paren- appeal and remand to the trial objections and granted appel- tis standing is the critical court, father will be subjected lee’s in loco parentis standing. to extensive litigation involving The father filed a timely notice aspect of consent, which is appellee’s, including a custody of appeal thereafter. the springboard for achiev- hearing at a second appeal on In the Superior Court’s sua ing in loco parentis status. the exact issue he now seeks sponte ­analysis as to whether the to raise. Not only would father order from which the ­father ap- incur a substantial financial bur- pealed was an appealable order, However, the Superior Court den as a result of this litigation, it agreed with the father that ­concluded in the present case but he also could lose months the Pennsylvania Supreme Court that the father’s claim would of time caring for and bonding case of K.C. v. L.A., 128 A.3d be irreparably lost if review of with child as the custody hearing 774 (Pa. 2015), was applicable the matter were postponed until appeals process drags on. ... We to the instant case. In K.C., the entry of the final order. The therefore conclude that the order Supreme Court “held that an Superior Court highlighted that on appealed satisfies all three order denying intervention in a standing in child custody cases prongs of the collateral order child custody case due to a lack is a matter of constitutional sig- doctrine, and that father’s appeal of standing meets both the first nificance. The Superior Court as properly before us.” and second prongs of the collat- relied on the recent Pennsylvania The merits of the appeal per- eral order doctrine, as standing Supreme Court case of D.P. v. tain to in loco parentis standing. is an issue separable from, and G.J.P., 146 A.3d 204 (Pa. 2016), As the appellees are not grand- collateral to, the main cause of and quoted the court’s emphasis parents, they can only bring an action under the Custody Act if In re C.M.S., 884 A.2d 1284 (Pa. that the father “has been deprived they have standing under the in Super 2005), the Superior Court of child without any evidence loco parentis doctrine. Primarily, indicated that the father acted in in the record that he is an unfit there are three prongs to in loco a manner consistent with consent parent, and without the benefit parentis. First, in loco parentis when he chose to have no part of due process ­protections.” The status must begin with the con- in the child’s life for a year and Superior Court further stated: sent and knowledge of the par- failed to provide any care for “BCS’s decision to place Child ents. Second, the person claim- the child or establish any sort for adoption without father’s con- ing in loco parentis status must of bond during that year. In the sent is particularly troubling.” have assumed parental status K.W. case, the father acted in a This case is very important and, third, discharged parental manner inconsistent with con- for family law practitioners and duties. The first prong, as stated sent, according to the Superior the bench because it provides by the Superior Court is “criti- Court, by promptly informing an analysis regarding appealing cal.” In the present case, the BCS that he did not want the interim orders in child custody trial court found that the ap- child to be ­adopted less than a matters and the viability of doing pellees stood in loco parentis month after being notified that so under the collateral order doc- because they assumed parental she was residing with the per- trine. Further, the issue of in loco status and discharged parental spective parents. Also, he filed a parentis is always a tricky one. duties on the child’s behalf since custody complaint shortly there- Often overlooked when analyz- “shortly after birth.” However, after. Therefore, the Superior ing in loco parentis standing is the with regard to the consent prong Court concluded that the trial critical aspect of consent, which of in loco parentis, “the trial court erred in denying the fa- is the springboard for achieving court reasoned that father gave ther’s preliminary objections and in loco parentis status. Without his implied consent ... because granting appellees in loco paren- the consent of the parents, in loco he did not express interest in tis standing on an implied basis. parentis status cannot exist. • parenting child until almost a The Superior Court then vacated month after being informed that the order and remanded the case she was residing with a perspec- to the trial court to grant the tive adoptive family.” The father father’s preliminary objections countered this reasoning claim- and conduct a custody proceed- ing that implied consent is not ing consistent with the opinion permissible under Pennsylvania and indicated in a footnote that law. The Superior Court agreed on remand the trial court should with the father. The Superior consider the mother’s rights with Court analyzed numerous cases regard to any wishes that she that focused on whether actions has in sharing custody with the Reprinted with permission from the April 17, 2017 edition of parents can lead to consent to father. of The Legal Intelligencer © 2017 ALM Media Properties, LLC. All rights reserved. Further in loco parentis status. For ex- Interestingly, the Superior duplication without permission is prohibited. For information, contact 877-257-3382, [email protected] or ample, in looking at the case of Court notes “with disapproval” visit www.almreprints.com. # 201-04-17-09