Monday, October 03, 2005

custody - same-sex parents - in loco parentis - standard/burden of proof

Jones v. Boring -- Pa. Superior Court - September 30, 2005
Primary custody of twins awarded to non-biological parent of a separated lesbian couple, based on "clear and convincing evidence" that the children were better off with her.
The couple had a relationship starting in 1988.  Boring was impregnated by anonymous sperm donor and had twin boys in 1996.  The couple lived together as a family unit until January 2001, when Boring left Jones' residence, where they had all lived, taking the children with her.
Initially the court ordered joint legal custody.  Boring was awarded primary custody and Jones -- whose right to in loco parentis status was clear -- had "relatively typical partial custody....rights."  As time passed however, the court concluded the Jones had shown by clear and convincing evidence that it was in the children's best interest that she have primary custody.
The court rejected Boring's argument that Jones had to prove that she, Boring, was "unfit."  The court said that a person who is not a biological parent but stands in loco parentis "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 interest of the children to maintain that relationship or be with that person." (emphasis in original). 
Most telling was Boring's "multi-year effort to exclude Jones from the children's life [sic]....[T]he record is replete with evidence that Boring tried in every way possible to sabotage Jones' relationship with the children."