IN THE SUPREME COURT OF PENNSYLVANIA NO. 2 MAP …

1 IN THE SUPREME COURT OF PENNSYLVANIA NO. 2 MAP 2018 , Appellant, v. , Appellee. BRIEF OF AMICUS CURIAE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS, PENNSYLVANIA CHAPTER IN SUPPORT OF APPELLANT Appeal from the Opinion and Concurring Opinion of the Superior COURT of PENNSYLVANIA at No. 1733 MDA 2016, filed October 11, 2017, affirming the Order of the COURT of Common Pleas of Centre County, entered September 22, 2016, sustaining s Preliminary Objections and Dismissing Petitioners Custody Complaint at No. 2015-4710 Helen E. Casale (ID No. 74127) Adam N. Schupack (ID No. 320910) HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER One Logan Square, 27th Floor Philadelphia, PA 19103 (215) 568-6200 Counsel for Amicus Curiae American Academy of Matrimonial Lawyers, PENNSYLVANIA Chapter Received 2/20/2018 6:06:23 PM SUPREME COURT Middle DistrictFiled 2/20/2018 6:06:00 PM SUPREME COURT Middle District2 MAP 2018 TABLE OF CONTENTS I.

2 STATEMENT OF INTEREST OF AMICUS CURIAE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS, PENNSYLVANIA CHAPTER .. 1 II. ARGUMENT .. 3 A. PENNSYLVANIA Law and Policy Recognize That Third Parties Who Stand In Loco Parentis to a Child Have Custody Rights Worthy of Protection .. 3 1. PENNSYLVANIA Has Enshrined the In Loco Parentis Doctrine Into Its Child Custody Act .. 3 2. There Are Strong Policy Reasons for Protecting Third-Party Custody Rights .. 7 3. The Clear Trend of Authority Is Towards Protecting Third-Party Custody Rights .. 10 B. Has In Loco Parentis Status Based on PENNSYLVANIA Law .. 11 1. Standing, Even in Custody Actions, Must Still Be Applied Consistently With Its Goal Ensuring A Litigant Has a Substantial, Direct, and Immediate Interest in the Matter .. 11 2. Standing Must Be Evaluated Against the Legal Bar on Marriage Faced By Same-Sex Couples Prior to Whitewood and Obergefell.

3 14 3. Applying a Correct View of Standing to the Facts Here, Has In Loco Parentis Standing .. 17 4. Although In Loco Parentis Standing Confers a Prima Facie Claim to Custody, a Third Party Must Nonetheless Demonstrate That Custody Is In the Best Interests of the Child .. 20 C. Post-Separation Conduct Should Not Be Considered In Determining In Loco Parentis Standing .. 21 - ii - 1. In Loco Parentis Status, Once Achieved, Is Not Lost By Post-Separation Conduct .. 21 2. Considering Post-Separation Conduct Will Encourage Bad Behavior That May Harm the Child .. 24 III. CONCLUSION .. 25 - iii - TABLE OF AUTHORITIES Cases Page(s) Brenner v. Scott, 999 F. Supp. 2d 1278 ( Fla.)

4 2014) .. 15 Brenner v. Scott, No. 4:14-cv-107-RH/CAS, 4:14-cv -138-RH/CAS, 2016 WL 3561754 ( Fla. Mar. 30, 2016) .. 18 Brenner v. Scott, No. 4:14cv107-RH/CAS, 2015 WL 44260 ( Fla. Jan. 1, 2015) .. 15 v. , 172 43 (Pa. Super. Ct. 2017) ..passim Conover v. Conover, 146 433 (Md. 2016) .. 10, 11 Constant A. v. Paul , 496 1 (Pa. Super. Ct. 1985) .. 7 v. P., 146 204 (Pa. 2016) .. 8, 9 Hiller v. Fausey, 904 875 (Pa. 2006) .. 9 v. , 682 1314 (Pa. Super. Ct. 1996) ..passim Jones v. Jones, 884 915 (Pa. Super. Ct. 2005) .. 6, 24, 25 K. B. II v. , 833 767 (Pa. Super. Ct. 2003) .. 8 v. , 813 872 (Pa. Super. Ct. 2002) .. 8 Liebner v. Simcox, 834 606 (Pa. Super.

5 Ct. 2003) .. 6, 19, 23 - iv - v. , 989 11 (Pa. Super. Ct. 2010) .. 7 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) .. 14, 16, 17 Peters v. Costello, 891 705 (Pa. 2005) .. 6 Ramey v. Sutton, 362 217 (Okla. 2015) .. 14, 16, 17, 18 Spells v. Spells, 378 879 (Pa. Super. Ct. 1977) .. 4 v. , 786 913 (Pa. 2001) ..passim Whitewood v. Wolf, 992 F. Supp. 2d 410 ( Pa. 2014) .. 14, 15, 17 Statutes 23 Pa. 5324 .. 1, 6, 7 1106, No. 112 4 (Nov. 23, 2010) .. 6 Other Authorities Katharine T. Bartlett, Prioritizing Past Caretaking in Child-Custody Decisionmaking, 77 Law & Contemp. Probs. 29, 61-62 (2014) .. 10, 14 Kendra Huard Fershee, The Prima Facie Parent: Implementing a Simple, Fair, and Efficient Standing Test in Courts Considering Custody Disputes by Unmarried Gay or Lesbian Parents, 48 Family Law Q.

6 435, 467 (2014) .. 25 Dara Kam, Florida settles federal birth certificate suit, agrees to recognize same-sex married parents, Miami Herald (Jan. 11, 2017, 4:05 ), gay-south- .. 18 - v - Kids Count, Data Center, The Annie E. Casey Foundation, (Oct. 2017), #detailed/2/2-52/false/870,573,869,36,86 8/any/433, 9 Nancy D. Polikoff, From Third Parties to Parents: The Case of Lesbian Couples and Their Children, 77 Law & Contemp. Probs. 195, 208 (2014) .. 10 Principles of the Law of Family Dissolution: Analysis and Recommendations, (1)(c) (Am. Law Inst. 2003) .. 10, 11 I. STATEMENT OF INTEREST OF AMICUS CURIAE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS, PENNSYLVANIA CHAPTER PENNSYLVANIA has been in the vanguard of the now majority of states that recognize third parties who stand in loco parentis to a child have custody rights worthy of protection.

7 For more than 20 years, courts in this Commonwealth have recognized that the same-sex partner of the biological mother of a child born during their relationship has in loco parentis standing to seek custody. v. , 682 1314, 1321 (Pa. Super. Ct. 1996). Since 2010, this Commonwealth has enshrined that protection in its Child Custody Act by offering standing in custody disputes to a person who stands in loco parentis to the child. 23 Pa. 5324(2). This reflects sound policy. It recognizes that the touchstone for custody must be the best interests of the child, that offering additional avenues of familial support for PENNSYLVANIA children should be encouraged, and that this Commonwealth has numerous non-traditional families in which someone other than biological parents are parenting children.

8 PENNSYLVANIA law, therefore, embraces the reality that a child s attachment to someone whose care, love, and devotion to him or her is equivalent to that of a biological parent is deserving of protection. The Superior COURT s decision in v. , 172 43 (Pa. Super. Ct. 2017), flies in the face of this history. - 2 - Amicus here is the PENNSYLVANIA Chapter of the American Academy of Matrimonial Lawyers ( AAML ). Founded in 1962, the AAML is committed To provide leadership that promotes the highest degree of professionalism and excellence in the practice of family law. AAML s more than 1,650 Fellows are recognized as preeminent family law practitioners with a high level of knowledge, skill, and integrity. The PENNSYLVANIA Chapter s more than 60 Fellows include this Commonwealth s leading practitioners of family law, who are looked to by bench and bar for their expertise and leadership on legal issues impacting families.

9 In denying in loco parentis standing to Appellant , who lived together with Appellee in a same-sex relationship for nearly six years following the birth of , the Superior COURT departed from numerous judicial decisions and the Legislature s intent in adding in loco parentis standing to the Child Custody Act in 2010. The Superior COURT reached its conclusion, and shut the courthouse door to , by applying standing in an inflexible manner divorced from the goal of the standing doctrine to ensure that a litigant has a direct, substantial and immediate interest in the dispute. Moreover, to hold that has no such interest in the custody of , the child with whom she lived together as a family for the first nearly six years of his life, would permit an overly aggressive application of standing to swallow the in loco parentis standing provision enacted by the Legislature.

10 - 3 - Applying judicial precedents, the Child Custody Act, and the standing doctrine properly, this COURT should hold that has standing to seek custody over Granting standing to would entitle her only to a custody hearing. It would not, as the Superior COURT appeared to believe, obviate s need to demonstrate, on the merits, that granting her some form of custody would be in s best interests. The Superior COURT also erred in placing great stress on the parties post-separation conduct in evaluating standing. That focus both runs contrary to PENNSYLVANIA law and would encourage bad post-separation conduct by the legal parent that is not in the best interests of the child, but is aimed instead at manipulating the in loco parentis standing inquiry. Accordingly, this COURT should reverse the decision of the Superior COURT and hold that had in loco parentis standing and is entitled to a hearing on whether the award of any form of custody to her is in s best interests.