Custody, In Loco Parentis and Reproductive Assistive Technology
With more couples building families through reproductive assistive technology, custody questions may become an issue if the original family is no longer is intact, if the parents never married, and/or if the non-biological parent did not adopt the child. More and more courts are being asked to determine custody in these cases. There are steps that couples can take to help avoid or minimize this intervention. The facts and result in a recent Pennsylvania case are instructive.
In the case of C. G. v. J.H., J.H. conceived a child by artificial insemination. C.G. and J.H. were not married and Florida (where they resided) did not recognize same sex marriage at that time. J.H. was the biological mother. The child, J.W.H. , was born in Florida in October 2006, while C.G. and J.H. were living together as a same-sex couple. C.G. and J.H. continued to live together for about five more years. The relationship, however, began to wane and J.H. moved with the child to a separate residence in Florida and then moved to Pennsylvania in July 2012.
About three years later, in 2015, C.G. petitioned the Pennsylvania Court for shared legal and partial physical custody, alleging that she, C.G. “also acted (and acts) as a mother to the minor child …[and] the minor child was conceived by mutual consent of the parties with the intent that both parties would co-parent and act as mothers to the minor child.” Since C.G, was not the biological parent, J.H. alleged that she did not have “standing” to bring the matter at all. Because the parties were not married at the time of conception, and because C.G. did not adopt the child, the trial court held extensive hearings looking into the roles of each party to determine whether there was sufficient status for C.G, to raise the claim for custody.
As might be expected, the testimony conflicted. Just as in a traditional custody case, the parties presented extensive evidence including who attended to the child’s “[p]hysical, [e]motional, and [s]ocial needs.” Testimony including facts of day-to-day life was considered by the judge, as were facts regarding decision-making about the child’s medical and educational needs, child care, financial support and other items.