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Can You Protect Custody When Only One Parent is the Biological Parent?

January 2, 2018

 Custody, In Loco Parentis and Reproductive Assistive Technology

With more couples building families through reproductive assistive technology, custody questions  may become an issue  if the original family is no longer is intact, if the parents never married, and/or if the non-biological parent did not adopt the child.   More and more courts are being asked to determine custody in these cases.   There are steps that couples can take to help avoid or minimize this intervention.   The  facts and result in a recent Pennsylvania case are instructive.

In the  case of C. G. v. J.H.,  J.H. conceived a child by artificial insemination.    C.G. and J.H. were not married and Florida (where they resided)  did not recognize same sex marriage at that time.   J.H. was the biological mother.   The child, J.W.H. , was born in Florida in October 2006, while C.G. and J.H. were living together as a same-sex couple.   C.G. and J.H. continued to live together for about five more years.   The relationship, however,  began to wane and J.H. moved with the child to a separate residence in Florida and then moved to Pennsylvania in July 2012.

About three years later, in 2015, C.G. petitioned the Pennsylvania Court for shared legal and partial physical custody, alleging that she, C.G. “also acted (and acts) as a mother to the minor child …[and] 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.”    Since C.G, was not the biological parent,  J.H. alleged that she did not have  “standing” to bring the matter at all.    Because the parties were not married at the time of conception, and because C.G. did not adopt the child,   the trial court held extensive hearings looking into the roles of each party to determine whether there was sufficient status for C.G, to raise the claim for custody.  


As might be expected, the testimony conflicted.   Just as in a traditional custody case, the parties presented extensive evidence including  who attended to the child’s “[p]hysical, [e]motional, and [s]ocial needs.”   Testimony including facts of  day-to-day life was considered by the judge, as were facts regarding  decision-making about the child’s medical and educational needs, child care, financial support and other items.

Again, because C.G, was not the biological parent, and because she was not an adoptive parent,  the court determined, and the appellate agreed that the only basis for her right to custody could be what is called in loco parentis status- meaning she stands in the position of a parent.    The   trial court found that C.G,’s acts did not rise to the level of in loco parentis, and her custody claim was dismissed.

The case is instructive because there are many things that C.G. could have done, but did not.   She and the biological mother never married.  Her parental efforts were not sufficiently involved for the court.   And significantly,  she and her partner did not take any legal steps that would have protected C.G’s rights.

It is  more commonplace today for one partner to be a biological parent. This is not a reason, however, for the other parent to live in fear that  custodial rights may be lost, as were C.G.’s.   Parents can take many legal steps after conception and birth to secure their rights to custody should anything happen to the relationship or to either party.

If you wish to learn more about custody rights, in loco parentis, and assistive reproductive technologies, please  call  610 565 6200 to contact one of our attorneys who can assist with this information.