Biology Can’t Trump Child’s Best Interest
By Alphonso David, Staff Attorney, from Of Counsel vol 3, no 1
On November 28, 2006, the Supreme Court of Pennsylvania in Jones v. Boring-Jones refused to hear a lower court ruling shifting primary physical custody from a biological parent to a nonbiological same-sex parent. In so doing, these decisions reinforce that, regardless of the parents’ sexual orientation or biological ties to the children, the best interests of the children should remain the focus in custody determinations.
Patricia Jones (“Jones”) and Ellen Boring-Jones (“Boring”), were partners for 14 years. During their relationship, they decided to have children. The women jointly selected sperm donors, and after a series of fertility procedures, Boring became pregnant with twins.
Jones and Boring jointly parented their children until their relationship ended. Jones filed a petition for partial custody, and the trial court found that she had parental rights to the children under the in loco parentis doctrine. The court 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 ordered custody evaluations and held hearings.
In January 2005 the court modified the custody order and granted primary physical custody to Jones, listing a number of reasons for its decision, including Jones’s strong parental bond with the children, that she is a professional educator with excellent parental skills, her altruistic nature when it came to volunteering at the boys’ school and her attentiveness to the children’s psychological needs. The court expressed concerns about Boring’s questionable parental skills, her failure to demonstrate appropriate parental concerns by putting her needs in front of the children’s and her repeated violation of court orders. The court also expressed concerns about Boring’s drinking and its impact on the children. The court concluded that there were “convincing reasons” that being in Jones’s custody would be in the best interest of the children and awarded her primary physical custody.
Boring appealed the trial court’s ruling, contending that because she was the children’s biological mother and former primary custodian, the children could not be removed from her custody without a finding that she is unfit. She speciously relied on Troxel v. Granville, 530 U.S. 57 (2000), the U.S. Supreme Court holding that a Washington statute permitting any person to petition for visitation with a child at any time was unconstitutional as applied in that case. Contrary to Boring’s argument, however, the decision in Troxel did not prohibit courts from protecting a child’s relationship with a de facto or in loco parent (Troxel plaintiffs were the children’s grandparents). Rather, the Troxel plurality held only that “special factors” must be present before a court may intervene to protect a child’s relationship with a non-parent over the objections of a legal parent, and that the parent’s wishes must in some manner be given “material weight” or “at least some special weight.” See Troxel, 530 U.S at 68-69. In fact, seven justices in Troxel indicated that, in contrast to the grandparents’ claim before them, they would look favorably at a visitation and/or custody claim from a de facto parent or a person with a substantial relationship to the child. Accordingly, the Superior Court of Pennsylvania rejected Boring’s Troxel argument and upheld the lower court’s decision to grant primary physical custody to Jones. Boring then appealed that ruling, which the Supreme Court of Pennsylvania denied. See Jones v. Boring-Jones, No. 897 MAL 2005 (Pa. 2006).
The courts’ decisions represent two huge gains for Pennsylvania families with gay or lesbian parents. First, biological ties standing alone do not trump the best interests of children. Contrary to arguments raised by Boring, courts are not precluded from awarding custody to a nonbiological parent over the objections of the biological parent. The court opined: “It is axiomatic that in custody disputes, ‘the fundamental issue is the best interest of the child.’ … While this commonwealth places great importance on biological ties, it does not do so to the extent that the biological parent's right to custody will trump the best interests of the child.” Jones v. Boring-Jones, 884 A.2d 915, 917-18 (Pa. Super. 2005).
The court also confirmed that nonbiological parents seeking custody are not required to show that the biological parent is unfit as a prerequisite for obtaining custody. Rather, “[o]nce it is established that someone who is not the biological parent is in loco parentis, that person does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interests of the children to maintain that relationship or be with that person.” Id. at 917.
The superior court’s ruling, and the supreme court’s refusal to disturb it, reinforce fundamental principles that protect relationships between children and their parents. They represent an important part of the legal structure Lambda Legal is building across the country to ensure that both biological and nonbiological parents can maintain relationships with their children and that the best interests of children remain paramount in custody disputes. Jones firmly solidified this principle for families in Pennsylvania. As we did in Jones, we are forging ahead in matters around the country to make sure important parent-child relationships are respected, an objective that benefits all families and communities.
