PHILADELPHIA GAY NEWS
PAGE 8
FEB. 5 - 11, 2010
Pa. court makes landmark custody ruling By Jen Colletta PGN Staff Writer The Pennsylvania Superior Court has overturned a 25-yearold legal precedent that presented gay parents with an added obstacle in child-custody cases. On Jan. 21, the court struck down the “special evidentiary presumption” instituted by a 1985 Supreme Court panel decision that placed a burden on proof on gay parents to demonstrate that their same-sex relationship wouldn’t harm their children. The original decision found that, while a parent’s homosexuality would not automatically preclude him or her from equal visitation or custody rights, that individual had to prove to the court that his or her household would not create an
adverse effect on the child; if the other parent was in a heterosexual relationship, he or she would benefit from “a presumption of regularity,” the court had said. Superior Court panels later utilized this precedent in two other custody cases. In last week’s decision, however, the court found that the original panel in the 1985 case, “Constant A. v. Paul C.A.,” “violated the basic precept that the sole focus of a child-custody proceeding should be on the best interests of the child — without either parent bearing the burden of proof.” The court opinion, written by Judge Christine Donohue, went on to state that the “Constant” ruling was based on “unsupported preconceptions and prejudices” about LGBT parents, such as the
presumed adverse effect such parents would have on their children, and that a heterosexual parenting structure is “superior” to a samesex household. “Such preconceptions and prejudices have no proper place in child-custody cases, where the decision should be based exclusively upon a determination of the best interests of the child given the evidence presented to the trial court,” Donohue wrote. The ruling overturned a Dauphin County trial court’s decision that gave a father primary custody of his daughter and the mother, who had been in a lesbian relationship, limited visitation rights. The parents, who were married in 1993, adopted a daughter in 2004; two years later, the mother admitted to her husband that she
had been in a relationship with a female friend since late 2004. The couple filed for divorce, with the mother seeking shared custody of their daughter and the father petitioning for primary custody. A social worker assigned to the case to evaluate possible custody agreements recommended a “3-22-3” schedule, in which the daughter would spent two or three days with each parent on an alternating basis. That plan was put in place for an 18-month transition period, but at the end of August 2008 — shortly before the transition was to end — a trial-court judge granted primary custody to the father and allowed the mother visitation every other weekend, on some holidays and for six weeks during the summer. In the trial-court opinion, the
judge said the mother failed to meet the burden of proof set forth in “Constant,” noting she offered no testimony as to how her samesex relationship, which had ended before August 2008, would affect her daughter. The court said it weighed the child’s best interests and “believe[d] those interests are better served by placing her in a traditional heterosexual environment.” Dan Clifford, openly gay managing partner of the Norristown office of law firm Weber Gallagher, said that over the past few decades, courts have gradually moved away from relying upon such evidentiary presumptions in their custody decisions. Although he noted that the “Constant” precedent was not often utilized, its presence on the books provided an acceptable outlet for discrimination against gay parents. “This removes a weapon that judges would have when it comes to this issue. It’s basically removing the shackles that gay parents had from the minute they walked through the courtroom doors,” Clifford said. He added that “Constant” placed gay parents on “unequal footing” and likened it to the “Tender Years Doctrine,” which presumed mothers should have primary custody of young children, ruled unconstitutional in 1977. In addition to disagreeing with the “Constant” precedent used by the trial-court judge, the Superior Court also said the court “abused its discretion” by relying on the judge’s own aversion to sharedcustody agreements, which the court said the judge followed without providing evidence for the benefits of primary custody. “I’m not going to expound at any great length on why I think primary physical custody is to be preferred,” the trial-court judge had written. “It’s based upon my many years on the bench, my own personal experience as a parent, a grandparent, a foster parent.” The Superior Court had the option to remand the case back to the trial court for further consideration, but Donohue noted in her opinion that the record had already been “sufficiently developed.” The Superior Court substituted its judgment for that of the trial court, awarding shared custody to both parents on a “3-2-2-3” schedule. ■ Jen Colletta can be reached at jen@epgn.com.