Pennsylvania Custody and Visitation Law
Custody and Visitation for Gay, Lesbian and Bisexual Parents
Pennsylvania courts typically will not consider a parent’s sexual orientation in custody and visitation determinations unless it is shown to adversely affect or harm the child(ren).
Pennsylvania law states: “It is the public policy of this commonwealth, when in the best interest of the child, to assure a reasonable and continuing contact of the child with both parents after a separation or dissolution of the marriage and the sharing of the rights and responsibilities of child rearing by both parents and continuing contact of the child or children with grandparents when a parent is deceased, divorced or separated. …
“In making an order for custody or partial custody, the court shall consider the preference of the child as well as any other factor which legitimately impacts the child’s physical, intellectual and emotional well-being. In making an order for custody, partial custody or visitation to either parent, the court shall consider, among other factors, which parent is more likely to encourage, permit and allow frequent and continuing contact and physical access between the non-custodial parent and the child.”
In a 1992 case, Blew v. Verta, the issue before the Superior Court was whether the trial court had discretion to restrict the partial custody rights of the lesbian mother. The trial court had restricted the mother from visiting her son in the presence of her female partner. In reviewing the record, the Superior Court found “that the trial court’s conclusion that Nicholas [the child] has been harmed by his mother’s lesbian relationship is not supported by its own findings of fact and therefore represents a gross abuse of discretion.” Additionally, the Superior Court found error with the trial judge’s rationale that the son was embarrassed and angry over other people’s reactions to his mother and her partner. “The merits of a custody arrangement ought not to depend upon others people’s reactions. … In Nicholas’ case, one of life’s realties is that one of his parents is homosexual. In the absence of evidence that the homosexuality in some way harms the boy, limiting Nicholas’ relationship with the parent fails to permit him to confront his life situation. … Nicholas’ best interest is served by exposing him to reality and not fostering in him shame or abhorrence for his mother’s nontraditional commitment.”
In a 1991 case, Barron v. Barron, both parents had been granted joint custody with the father having primary physical custody. The lesbian mother appealed. The Superior Court affirmed the standard a parent in a same-sex relationship must meet: “The burden is on the parent who is involved in a gay relationship to prove that there will not be an adverse effect on the child if exposed to this relationship.” In this specific case, the trial court found that the mother’s partner had created an unwelcome environment. The Superior Court found that its conclusion “is not supported in the testimony. … We are convinced that this factor alone was not determinative of the court’s resolution of the custody question.”
In a 1986 case, Pascarella v. Pascarella, the gay father appealed a ruling granting him partial custody of his daughters. He argued that the court abused its discretion and committed an error when it took his relationship with his same-sex partner into consideration. The Superior Court affirmed the decision and stated that a court can properly consider a parent’s sexual orientation when formulating a custody order.
In a 1985 case, Constant A. v. Paul C.A., a lesbian mother’s petition for expanded shared custody was denied. She argued that her relationship with her same-sex partner could not be considered. The Superior Court disagreed, stating that it was a relevant consideration in a custody determination. When affirming the trial court’s decision, the Superior Court relied partly on the fact that gay sex was a crime in some states. Additionally, the Superior Court proclaimed: “Where there is a custody dispute between members of a traditional family environment and one of homosexual compositions, the presumption of regularity applies to the traditional relationship and the burden of proving no adverse effect of the homosexual relationship falls on the person advocating it.” The Superior Court pointed out, however, that “homosexuality per se is not a basis for denying visitation or partial custody to a parent, [but] we do not consider it irrelevant.”
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents. State law, however, does not seem to permit the consideration of factors that do not affect the best interests of the child to be used in custody and visitation determinations.
Custody and Visitation for Same-Sex Co-Parents
Pennsylvania courts will allow a former same-sex partner (with no legal or biological relationship to the child(ren)) to petition for visitation.
In a 2002 case, L.S.K. v. H.A.N., the Pennsylvania Superior Court held that the former domestic partner of a lesbian mother who had petitioned for visitation rights of the couple’s children was also required to pay child support to her former partner for care of the children. The former partner was determined to stand in loco parentis to the five children of the relationship. “The phrase in loco parentis refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of legal adoption,” the court said.
In a 2001 case, T.B. v. L.R.M., the trial court found that the former same-sex partner was able to petition for visitation rights of the child born during her relationship with the biological mother. The state Supreme Court affirmed that the former partner stood in loco parentis to the child and could petition the court for visitation.
In a 1996 case, J.A.L. v. E.P.H., the court was asked to decide whether J.A.L., the former partner of E.P.H. — the biological mother of the child born during the relationship — had standing to petition for partial custody. The trial court ruled that she did not. The Superior Court disagreed, noting, “The fact that the petitioner [J.A.L.] lived with the child and the natural parent in a family setting … and developed a relationship with the child as a result of the participation and acquiescence of the natural parent must be an important factor in determining whether the petitioner has standing.”
Citations: 23 PA. CONS. STAT. §5301; 23 PA. CONS. STAT.§5303; Blew v. Verta, 617 A.2d 31 (Pa. Super. Ct. 1992); Barron v. Barron, 594 A.2d 682 (Pa. Super. Ct. 1991); Pascarella v. Pascarella, 512 A.2d 715 (Pa. Super. Ct. 1986); Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. Ct. 1985); L.S.K. v. H.A.N., 813 A.2d 872 (Pa. Super. Ct. 2002); T.B. v. L.R.M., 786 A.2d 913 (Pa. 2001); J.A.L. v. E.P.H., 682 A.2D 1314 (Pa. Super. Ct. 1996).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Last Updated: 10/13/2004