Third Party Standing in Custody Cases: Recent Cases

As a result of a recent Superior Court decision, it appears the rights of third party custody litigants have been further tightened.  Earlier, I discussed the Supreme Court’s ruling that impacted standing of grandparents.  This decision, issued on March 6, 2017, tackles situations of custody participants who assert standing under the in loco parentis section of the statute.

In K.W. v. S.L & M.L. v. G.G., Mother apparently did not inform Father of her pregnancy.  Rather, approximately 5 months prior to the child’s birth, Mother contacted Bethany Christian Services to place the child for adoption.  With Mother’s help, BCS did conduct a search for Father, which included letters to his last known address and some Facebook messages and friend requests.  Meanwhile, two days after the child’s birth, the child was placed with S.L. and M.L. as prospective adoptive parents.

Father received the letters from BCS on September 19, 2015, approximately one month after the child’s birth and placement with S.L and M.L.  Father contacted BCS to set up a meeting and, on approximately October 14, 2015, Father informed BCS that he did not want the child to be adopted.  Soon thereafter, Father filed a custody action in Centre County, naming only Mother and Father as parties. He also requested that BCS be ordered to disclose the whereabouts of the child.  The Court granted primary custody to S.L. and M.L. and awarded partial custody to Father.  In addition, the action was transferred to Lycoming County (Father’s home).  S.L. and M.L. filed a separate custody action in their home county, York and, in a separate filing, challenged Centre County’s transfer of the action to Lycoming County.  The end result of all of these filings is that the matter continued in York County.  Based on one of the arguments made by Father, the York County Court heard the issue of whether S.L. and M.L. had standing in the custody action. 

Generally, the only non-parent, grandparent or great-grandparent who has standing to seek custody of a child is one who stands in loco parentis to the child.  In loco parentis literally means “in the place of a parent.”  More specifically, a person is considered in loco parentis if he assumes the obligations incident to the parental relationship without going through the formality of a legal adoption.  There are typically two considerations in a determination of “in loco parentis”: (1) assuming parental status and (2) discharge of parental duties.  Importantly, you cannot be in loco parentis of a child without the consent and knowledge of a parent.

The York County court found that S.L. and M.L. did have standing (that they were in loco parentis).  The Superior Court, however, reversed that decision and held that Father did not consent to the placement through BCS and, therefore, S.L. and M.L. could not be in loco parentis of the child.  As such, they did not have standing to pursue any custody of the child, even though the child had been with them, in their home, for the entirety of her 18 months of life.

The court focused on whether Father gave “implied consent” for placement with S.L. and M.L. through BCS.  Essentially, the inquiry was into whether, by waiting one month to affirmatively object to the placement, Father “consented” to the placement.  The Court found that Father’s objection was prompt and, therefore, not consistent with consenting to the placement and adoption.  The Court compared that to a prior case where a father failed to be involved in his child’s life for a year.  In that case, the father’s conduct was consistent with consent to placement with another.

The Superior Court here indicated it was cognizant of the impact this decision would have on this child and S.L and M.L, who have “parented” this child for a year and a half.  This decision legally cuts them out of the child’s life.  However, the court felt that a parent’s fundamental constitutional right to care for a child (and the legal presumption that a parent is fit) outweighs the sympathy felt for the prospective adoptive parents and, as such, Father has a right to parent this child absent interference from a third party.

There are two practical implications of this decision – one to foster or prospective adoptive parents and the other to a parent who has minimal or no contact with the child.  For these third party individuals (whether foster parents, uncle or aunt or any other who may care for a child for any length of time), doing so without clear consent of both parents could result in a situation where the child is taken and that person is left with no legal recourse, unless he can prove that the parent is unfit.  On the other hand, a parent should be conscious of not waiting too long to object or assert parental rights.  The court  here was careful not to establish a bright line rule about what length of time tips the scale from consistent to inconsistent with consenting to placement, however did give some guidelines for attorneys and litigants to follow.

K.W. v. S.L. and M.L. v. G.G. (2017 PA. Super 56), March 6, 2017.