                               [J-32-2018] [MO: Mundy, J.]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                    MIDDLE DISTRICT


 C.G.,                                            :   No. 2 MAP 2018
                                                  :
                         Appellant                :   Appeal from the Order of the Superior
                                                  :   Court at No. 1733 MDA 2016 dated
                                                  :   October 11, 2017 Affirming the Order
                  v.                              :   of the Centre County Court of
                                                  :   Common Pleas, Civil Division, at No.
                                                  :   2015-4710 dated September 22,
 J. H.,                                           :   2016.
                                                  :
                         Appellee                 :   ARGUED: May 15, 2018


                                     CONCURRING OPINION


JUSTICE DOUGHERTY                                          DECIDED: September 21, 2018
          The trial court’s credibility findings in this case compel the conclusion C.G. lacks

standing to seek custody of Child. But in my respectful view, nothing warrants, much less

necessitates, the majority’s cramped interpretation of “parent” under 23 Pa.C.S. §5324(1),

the inevitable result of which will be the continued infliction of disproportionate hardship

on the growing number of nontraditional families — particularly those of same-sex

couples — across the Commonwealth. I therefore concur in the result only.

          According to the majority, our precedent supports a conclusion parentage for

standing purposes may be proven in only four ways: biology, adoption, a presumption

attendant to marriage, or “legal parentage by contract — where a child is born with the

assistance of a donor who relinquishes parental rights and/or a non-biologically related

person assumes legal parentage[.]” Majority Opinion, slip op. at 21. Unfortunately, even

under this paradigm of parentage, it remains impossible — absent marriage or adoption

— for both partners of a same-sex couple to have standing as a parent, as only one can
be biologically related to the child or contract to assume legal parentage. I see no good

reason why the Court should continue to impose such an overly-restrictive formulation,

which fails to take into account equitable principles and may ultimately frustrate the

paramount concern of protecting a child’s best interests. See Douglas NeJaime, The

Nature of Parenthood, 126 Yale L.J. 2260, 2289 (2017) (“[E]ven as principles of gender

and sexual-orientation equality have animated shifts in parental recognition, parentage

law continues to draw distinctions that carry forward legacies of inequality embedded in

frameworks forged in earlier eras.”).

       The majority correctly observes the reality that what comprises a family is an

evolving concept. See Majority Opinion, slip op. at 15, citing Troxel v. Granville, 530 U.S.

57, 63 (2000) (“The demographic changes of the past century make it difficult to speak of

an average American family. The composition of families varies greatly from household

to household.”); J.A.L. v. E.P.H., 682 A.2d 1314, 1320 (Pa. Super. 1996) (“In today's

society, where increased mobility, changes in social mores and increased individual

freedom have created a wide spectrum of arrangements filling the role of the traditional

nuclear family, flexibility in the application of standing principles is required in order to

adapt those principles to the interests of each particular child.”). Yet despite recognizing

the diverse range of parental configurations that now exist, the majority interprets our

case law in a manner that continues to primarily tether parentage to traditional notions of

biology and adoption. There is a very real and grave risk to this approach, to children

and putative parents alike. See Brooke S.B. v. Eizabeth A.C.C., 61 N.E.3d 488, 499 (N.Y.

2016) (“A growing body of social science reveals the trauma children suffer as a result of

separation from a primary attachment figure — such as a de facto parent — regardless

of that figure’s biological or adoptive ties to the children[.]”) (collecting sources); NeJaime,

126 Yale L.J. at 2322 (“The harms of nonrecognition are not only practical but expressive.




                              [J-32-2018] [MO: Mundy, J.] - 2
Courts routinely term those who serve as parents but lack biological ties “nonparents” —

casting them as third parties who are otherwise strangers to the family.”).1

       Cognizant of these potential harms, I would not interpret our case law so narrowly.

Instead, I believe there is room in our precedent — particularly in the absence of any

guidance from the legislature — to conclude an individual who lacks biological, adoptive,

or marital ties may nevertheless establish standing as a parent to seek custody under 23

Pa.C.S. §5324(1). See Sinnott v. Peck, 180 A.3d 560, 573 (Vt. 2017) (“[T]he Legislature’s

inaction to date is not an impediment to our own obligation to resolve the specific cases

before us by developing a consistent and coherent approach to defining parenthood

within the construct that the Legislature has given us and our prior case law; in fact, it

creates a more urgent need for us to act.”). Such is certainly the trend in other states.

See id. at 569-72 (detailing cases that “reinforce the modern trend” of analyzing non-

biological, non-adoptive, and non-marital parenthood by “focusing on the parties’

agreement and intentions at the time they brought a child into their home”); NeJaime, 126

Yale L.J. at 2260 (explaining “the law increasingly . . . recognizes parents on not only

biological but also social grounds” and offering comprehensive analysis of legal trends).

       In line with this trend in other jurisdictions, C.G. asks this Court “to clarify that

parentage may not only be determined by biology or adoption, but also by the intent of

parties who create a child together using assisted reproductive technology, and then co-

parent that child together.” C.G.’s Brief at 21. In her view, parentage “turns on whether


1 I do not intend to minimize the significant and fundamental right of biological or adoptive
parents to control the upbringing of their children. As the majority properly appreciates,
the interest of parents in the care, custody, and control of their children “is perhaps the
oldest [of the] fundamental liberty interest[s.]” Majority Opinion, slip op. at 11, quoting
Troxel, 530 U.S. at 65. This fundamental right necessarily militates caution in expanding
the category of those who may be identified as a “parent.” However, in my respectful
view, the law need not deny the salience of biological or adoptive bonds to recognize the
validity of additional indicia of parenthood.


                             [J-32-2018] [MO: Mundy, J.] - 3
the party in question had agreed to the conception of the child and whether that party had

intended to parent the child following the child’s birth.” Id. at 34. Justice Wecht would

similarly “embrace an intent-based test for parentage for persons pursuing parentage

through” assisted reproductive technology. Concurring Opinion, slip op. at 7 (Wecht, J.).

       In my view, it is unnecessary at this juncture to endorse any particular new test for

establishing standing as a parent. As noted, the nature of the family in the modern era

continues to evolve, and the various alternative tests proffered above, as well as the tests

adopted by other jurisdictions, strongly suggest there may not be a one-size-fits-all

approach to adequately address each unique familial situation. See Brooke S.B., 61

N.E.3d at 500-01 (rejecting premise it must “declare that one test would be appropriate

for all situations” and thus declining to decide whether, in a case where a biological or

adoptive parent consented to the creation of a parent-like-relationship between his or her

partner and child after conception, the partner would have standing).

       In any event, I am constrained to agree with the majority that “the trial court found

as fact that the parties did not mutually intend to conceive and raise a child, and the

parties did not jointly participate in the process.” Majority Opinion, slip op. at 21 n.11.

Those findings — which this Court is bound to accept, no matter how seemingly harsh

their effect — preclude a holding that C.G. has standing as a parent under any of the

proffered definitions of intent-based parentage. Accordingly, I agree that C.G. is not

entitled to the relief she seeks, and we must await another case with different facts before

we may properly consider the invitation to expand the definition of “parent” under 23

Pa.C.S. §5324(1).2

2 Parenthetically, I note my agreement with the majority that the bond between a third
party and a child is not dispositive of in loco parentis standing. Furthermore, with regard
to the issue of post-separation conduct, I agree “the relevant time frame to determine
whether a party stands in loco parentis is when the party developed the relationship with
the child with the acquiescence or encouragement of the natural parent.” Majority



                             [J-32-2018] [MO: Mundy, J.] - 4
Opinion, slip op. at 31. I depart from the majority, however, to the extent it implies post-
separation conduct can be used against a party seeking in loco parentis status. See,
e.g., Liebner v. Simcox, 834 A.2d 606, 611 (Pa. Super. 2003) (rejecting argument “that
once in loco parentis status has been obtained, it can be lost” due to post-separation
conduct); J.A.L., 682 A.2d at 1322 (considering post-separation conduct only to
“reinforce” finding third party stood in loco parentis).
