Pennsylvania Court Says Children's Welfare Comes Before Rights of Biological Parent in Case Involving Lesbian Mothers
(Philadelphia, September 27, 2005) — The Superior Court of Pennsylvania affirmed a lower court ruling awarding custody of twins to Patricia Jones, a lesbian mother, ruling that Jones would provide a better home than her ex-partner, Ellen Boring (the children's biological parent).
A unanimous three judge panel stated in its opinion: “We believe that the record supports a finding by clear and convincing evidence that the bests interests of the children are served by granting primary physical custody to Jones, for a number of reasons discussed in the trial court’s opinion…”
“We are pleased to see that the court kept its eye on the prize — the children’s best interests and granted primary physical custody to the parent who is best able to provide a stable and loving home, regardless of biology,” said Alphonso David, Lambda Legal Staff Attorney who argued the case before the court. “This means that even though there is often just one biological parent in families headed by same-sex couples, biology alone does not trump the best interests of the child.”
Jones was represented by Lambda Legal, the National Center for Lesbian Rights, The Center for Lesbian and Gay Civil Rights and local counsel Maureen Gatto of Dorian, Goldstein, Wisniewski & Orchinik in Bensalem, Pennsylvania.
Patricia Jones and Ellen Boring were partners for 14 years. During that time they planned a family resulting in twins for whom both Jones and Boring served as caregivers. After splitting up in 2001, the trial court found that Jones had parental rights to the children and awarded joint custody to both mothers, giving primary physical custody to Boring. Later, Jones filed for primary physical custody of the children citing Boring’s history of contempt in observing the visitation schedule set by the court and her attempts to unilaterally remove the children from Pennsylvania. The court found “convincing reasons” that being in Jones’ custody would be in the best interest of the children and awarded her primary physical custody. That ruling was appealed by Boring, contending that as she was the children’s biological mother and former primary custodian, the children could not be removed from her custody without a finding she is unfit, a very high standard. The Superior Court of Pennsylvania found that argument to be invalid and upheld the lower court’s decision to grant primary physical custody to Jones.
The court’s decision makes clear that once a person has been granted parental rights, that individual does not need to prove that the biological parent is unfit to obtain custody of a child, but instead is judged by the same standards used in cases involving heterosexual non-biological parents.