Case Notes: Custody standing

In the case of E.T.S. v. S.L.H., 54 A3d 880 (Pa. Super 2012), the Superior Court decided the petition of a boyfriend who sought to have standing to seek custody of children.

The boyfriend moved in with his girlfriend and two children in 2003. Girlfriend was the great-aunt of the children. Boyfriend moved out in February 2011. Girlfriend adopted the children in April 2011, terminating the parental rights of their mother. Boyfriend then sought custody of the children he had lived with.

The right to seek custody of a child is called "standing" for custody. Non-parents can acquire standing for custody by acting as parents towards children. Acting as a parent towards a child is called in loco parentis. So, almost any third party who has acted as a parent towards minor children is granting standing to seek custody,

However, another law (5326) states that any rights to seek custody are terminated by an adoption, unless that adoption is by a grandparent, stepparent or great-grandparent.

Boyfriend argued that the 5326 only applied to grandparents etc. and that he still maintained his in loco parentis standing to seek custody, even after an adoption. The Superior Court disagreed and found that girlfriends adoption terminated boyfriends rights to seek any custody.

Presumably, the Superior Court wanted to give newly adopted children a "clean slate" free from prior custody entanglements. But this decision is problematic.

First, boyfriends custody rights would not have been terminated if the children had been adopted by their grandparents instead of a great-aunt. That makes little sense.

Secondly, this decision is problematic for extended family and same-sex couples who have acted as a parents towards children. These people could lose all rights to seek custody of children who are adopted by somebody other than a step-parent, grandparent or great-grandparent. Even if they have been acting as a parent towards the child for years.

If you fall in any of these categories, it is essential that you obtain counsel who understands the pitfalls of this complicated and difficult area of law. Otherwise, something as basic as parental rights could be lost.