Same-sex partners and custody – Florida v. Pennsylvania

Same-Sex Partners and Custody – Florida Law v. Pennsylvania Law

Those of you watching the news may have caught the Florida story of two same-sex ex-partners battling for custody of their daughter. To give you some background on this story, the biological mother of this child donated her egg to have their daughter, and her partner became fertilized with the embryo resulting from donated sperm and this egg. This partner became pregnant and gave birth to their daughter, whom they raised together until the child was two years old. The relationship did not work out between the two women and they initially came to an arrangement where the child lived primarily with the non-biological parent, and had regular visits with her biological parent.
However, the non-biological parent decided to move to Australia with this child and ended further visits between the child and her biological parent. This led to an epic battle for the biological parent, who wished to be recognized by Florida courts as a parent who had rights to this child. Florida did no such thing, leading the biological parent to appeal that decision. In December 2011, she won her appeal and is now recognized as a parent. You can catch the article here.
Many might wonder how the biological parent in the same situation would have fared in Pennsylvania. To figure this out, I looked at Pennsylvania case law to see how similar cases have been decided by the Court. I could not find any cases that 100% mirrored what’s happening in Florida. However, one case I discovered was “J.F. v. D.B.”, where a biological father and his wife sought a gestational carrier for his child. This ‘gestational carrier’ was fertilized with his sperm and a donor egg. The gestational carrier gave birth to triplets and did not want to hand them over to the biological father and his wife. Ultimately, the Superior Court of Pennsylvania found that the gestational carrier had no legal right to sue for custody of the three children, since she had no biological connection to the children and her relationship with the children began against the father’s wishes (i.e., she attempted to keep custody of the children after they were born, instead of delivering the children to their biological father and his wife).
Another case I found is called “Jones v. Jones” where, after a same-sex couple separated, the non-biological ex-partner was awarded primary physical custody of their child (e.g., the child lived primarily with her non-biological parent). This was because, according to the Superior Court of Pennsylvania, “clear and convincing evidence” existed which showed that awarding custody to the non-biological ex-partner was in the child’s best interest. The Court found that since she acted as the child’s parent, she had something called “in loco parentis” standing to sue for custody of the child, and she proved her case.
Pennsylvania law holds that a person who is not a biological parent can have ‘in loco parentis’ status (in other words, they can sue for custodial rights) if they have assumed a parental role in a child’s life and carried out parental duties. However, persons who have ‘in loco parentis’ status are held to a higher burden of proof when they try and obtain custody of a child. Their burden of proof is ‘clear and convincing evidence’, whereas the typical burden of proof between biological parents is ‘preponderance of the evidence’ (meaning, if the scales of justice are tipped ever so slightly in one person’s favor, they win). Thus, even though someone who acted as a parent can have parental rights to a child, it’s more of an uphill battle for them to gain custody of that child than a biological parent.
Applying Pennsylvania Law to the Florida case, it seems clear that both partners would have had parental rights to this child. The biological parent would obviously have had rights to her daughter, and the non-biological parent would have had rights as well, due to her ‘in loco parentis’ status. It will be interesting to see how each state evolves their law for same-sex parents in the future.
If any reader wishes to have citations of the Pennsylvania cases I discussed, please feel free to email me at


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