In a custody decision that will surprise many family lawyers, a Pennsylvania court ordered the natural father of his child to equally share custody of his child with the Mother’s boyfriend. It is a decision that is putting the nature of parental rights back in the news. Will the natural father’s appeal be granted?

Loco Parentis

The child, S.J., was born in April 2020. At the time, the mother was in a relationship with a man named Kareem Smith. At the time of S.J.’s birth, Kareem thought he was the biological father.

Then the mother died in May 2021, and her boyfriend continued to act as the father.

Victor got a paternity test which confirmed that he, not Kareem, was the biological father of S.J. The Mother’s boyfriend, Kareem, was merely acting in loco parentis – a Latin term meaning “in place of a parent.”

About a month after the paternity test results showed he was the natural father, Victor filed an action for sole custody of S.J. against Kareem. A custody hearing was held in February 2023.

Victor’s position was that Kareem was effectively an interloper who was interfering with Victor’s rights as the parent.  The family court held a few proceedings to introduce Victor to S.J.  Afterwards, the family court entered a temporary order.

The temporary order determined that Kareem was a psychological parent of the child, or was in loco parentis status because of his involvement as the child’s perceived father for more than a year. The court then awarded shared legal custody and shared physical custody on a 50/50 basis to the two fathers.

The natural father appealed.

Florida De Facto Parents

I’ve written about parental responsibility in Florida before. Florida uses the parental responsibility concept. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends.

The test applied to determine parental responsibility is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

Florida courts have considered the role of loco parentis, or psychological parents, like grandparents for instance, in a child’s life. Generally, in a dispute between a natural father and de facto parents, custody can be denied to the natural father only if there is clear and convincing evidence that the natural father abandoned the child, or is unfit, or placing the child with the natural father will be detrimental to the child’s welfare.

Heartbreaker in the Quaker State

On appeal, the Father argued that the trial court erred granting the mother’s boyfriend shared physical and legal custody of the child when the weight of the evidence was against shared custody.

The appellate court noted that in Pennsylvania, a natural parent has a prima facie right to custody, which will be forfeited only if convincing reasons appear that the child’s best interest will be served by an award to the third party.

The appellate court found no basis for changing the custody order because the family court judge found, by clear and convincing evidence, the need for stability and continuity in the child’s life was sufficient to overcome the presumption that custody be awarded to the natural parent. Because of the child’s “need for continuity”, and the fact that the two fathers co-parented well, the court affirmed the shared custody order.

The decision of the Superior Court of Pennsylvania is here.