Same-Sex Couples in Custody Court
Last month a Utah Judge recused himself from a custody case in which he had previously ordered that a foster child be removed from the home of a lesbian couple who were seeking to adopt the nine-month-old baby after providing her a foster care home for the last three months. On Monday of this week, pending a decision on whether or not it will hear the whole case, the United States Supreme Court stayed an order of the Alabama Supreme Court that would have prevented a lesbian mother’s adoption of the three children she shared with her former partner. Both cases present not only further challenges and developments of the law stemming from the Supreme Court’s ruling earlier this year that established the constitutional right of same sex couples to marry, but coming from the very “RED” states that they do, both cases can be seen to indicate that custody law will be following in the same direction as matrimonial law.
That being said, it is clear that the legal right to marry does not provide ready resolution of custody controversies involving same-sex couples, and that is even more the case for couples who “had” and were raising children, then separated, before they were even permitted to marry. These parents had no choice but to raise their children outside the legal protection provided by marriage. Often, one of the same-sex parents is the child’s biological parent, as was the situation in the Alabama case, but for the one who is not, these cases, and the development of the law, is critical to their custodial rights and interests, not to mention to the best interest of the child(ren).
The law in Pennsylvania gives standing for any form of physical or legal custody to a person who stands in loco parentis to the child, which arguably would include such non-biological parents as came forward in the Alabama case. At the same time though, under Pennsylvania law, there is a presumption in any custody case between a parent and a “third party” that custody shall be awarded to the parent, and the law requires clear and convincing evidence to rebut that presumption in favor of the parent. While much of the case-law established so far under this statutory provision relates to grandparents’ custody rights, the application of the provision to same-sex, non-biological parents’ rights presents an interest to the Pennsylvania courts just as legitimate as the state’s interest in seeing seeing children adopted into the optimal family structure.
As a spokesman for an LGBT advocacy group in Utah commented in that case, “sexual orientation should never be a barrier to raising a loving family.”
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