What Same-Sex Parents Should Know About Protecting Parental Rights in Pennsylvania

Though same-sex marriage is now legal in all 50 states, some legal issues continue to plague same-sex couples. This is especially true when same-sex couples seek a divorce (and they do, just about as often as straight couples do).

Custody is a thorny issue where same-sex couples are concerned. One has only to look to a recent case: C.G. v. J.H., ___ A.3d ___, 2017 Pa. Super. 320 (Oct. 10) to see custody issues are anything but straightforward where same-sex couples are concerned.

“The facts of C.G. are as follows: C.G. and J.H. lived together as a same-sex couple in Florida. In October 2006, J.W.H. was born. Approximately five years later, the parties separated. J.H. is the biological mother of J.W.H. According to the opinion, C.G. alleged that she acted as the mother of J.W.H. and that she and J.H. participated in selecting a sperm donor.”

“Six months after the parties separated, J.H. and the child moved to Pennsylvania. Approximately 3½ years after J.H. and J.W.H. moved to Pennsylvania, C.G. filed an action in Pennsylvania seeking shared legal custody and partial physical custody of J.W.H. J.H. thereafter filed preliminary objections challenging C.G.’s standing to seek custody. C.G. responded to J.H.’s preliminary objections “asserting that she had standing under the Child Custody Law both as a parent of the child, … and as a person who stood in loco parentis to the child.”

“The trial court held hearings on the preliminary objections and “received conflicting testimony from 16 witnesses about C.G.’s role in the child’s life.” Thereafter, according to the opinion, the trial court sustained J.H.’s preliminary objections and dismissed the custody complaint filed by C.G. with prejudice.” –The Legal Intelligence

While this case does not suggest all non-biological parents of children in a same-sex marriage will automatically lose custody of their children it nevertheless suggests some steps a non-biological same-sex partner may wish to take to protect his or her parental rights in the future.

The biggest and most crucial step may be to seek formal adoption of the child from the moment he or she is born.  In this case, the courts used the lack of a formal adoption to deny C.G.’s in loco parentis claim. Marriage alone does not appear to be enough to secure parental rights for same-sex couples. Even placing the non-biological parent’s name on the birth certificate is not necessarily sufficient to secure parental rights for the non-biological parent, especially given the relative novelty of legal same-sex marriages. Even facts as simple as your marriage date, and whether same-sex marriage was legal in Pennsylvania or your former state of residence on that date, can have an impact on your custody case.

Remember, it’s a good idea to secure the help of a good family lawyer during adoption proceedings even before divorce is on the horizon. The adoption process is anything but simple, and mistakes could cost you time with your child in the long run.

You may also wish to formalize a co-parenting agreement with your spouse while you and your significant other are on good terms. This agreement can be used to support your status as a parent in the future. Doing this while the marriage is safe and secure makes sense, as at this point the other parent should, ideally, readily agree that you should both be involved in the child’s life.

Finally, you will want to make sure you gather as much evidence about your involvement in the child’s life prior to your divorce. Incidentally this step is vitally important for straight parents as well. Records that indicate you signed the child in at medical appointments or attended school functions, witnesses who can testify about your relationship with the child, insurance policies where you have named the child as your beneficiary, and photos can all be very helpful when it comes to demonstrating that your continued involvement in your child’s life is within the child’s best interest.


If you are facing a divorce in Pennsylvania you’ll need experienced, professional help to protect your rights. Contact the law offices of Sadek and Cooper today for a free consultation. 

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