Custody Determinations for Same-Sex Couples in Pennsylvania
Nearly 15% of all same-sex households are raising children, according to the 2020 U.S. census. In Pennsylvania, the number is slightly lower. According to the census, 20 percent of same-sex families are raising children. Marriage between individuals of the same sex has been recognized in Pennsylvania as legal since May 20, 2014.
Many same-sex couples use assisted reproduction and artificial insemination by donor sperm. In these situations, the child is only biologically related to one of the parents in the same-sex household.
When a same-sex couple separates issues of child support and child custody must be resolved. Pennsylvania courts recognize the importance of the family and have used various equitable doctrines, such as psychological parent, de facto parent and in loco parentis to resolve issues of child support, custody and visitation following separation.
For a former same-sex partner to bring a custody action he or she must establish in loco parentis, which means that he or she was a temporary guardian of the child. In loco parentis can be factually shown when there is evidence that the couple and the child lived together as a family. The inability of a former partner to adopt the child does not bar the former partner from seeking partial custody or visitation with the child.
Reliance on equitable doctrines for custodial rights is precarious for the non-biological partner when partners reside in different states. Each state views the custody rights of same-sex couples differently. Some jurisdictions may not even grant visitation for the non-biological parent.
When possible a partner raising a child in a same-sex family should consider second parent adoption. Adoption guarantees a legal relationship with a child for a parent who is not biologically related. Pennsylvania courts have routinely permitted second parent adoptions.
Before deciding to have children, same-sex couples should consult a family law attorney to discuss the legal relationship each parent will have with their child and whether adoption might be appropriate.
