Pennsylvania Court Finds Three Adults Can Have Parental Rights

A unanimous panel of the Pennsylvania Superior Court, an intermediate appellate court, ruled on April 30 in Jacob v. Shultz-Jacob, 2007 Westlaw 1240885, 2007 PA Super 118, that a child may have three parents, in this case a former lesbian couple and the man who donated sperm so they could have some children. The unusual ruling is not based on Pennsylvania family law statutes, but instead on judge-made doctrine of "equitable estoppel," which has occasionally been used to in the past to enforce child support obligations against persons who are not legal parents.

According to the opinion for the court by Senior Judge John T. Kelly, Jr., Jodilynn Jacob and Jennifer Schultz lived together in York County, Pennsylvania, for about six years beginning in 1996. During that time, they had a commitment ceremony in Pittsburgh, and formed a civil union in Vermont, Jennifer taking the last name Schultz-Jacob. Jodilynn had two young nephews whom she had adopted, and she was the birth mother of two other children, conceived through donor insemination. The sperm donor was Carl Frampton, a long-time friend of Jennifer.

In February 2006, several months after the women had decided that their partnership was at an end, Jodilynn relocated with the four children to Dauphin County, and soon thereafter, Jennifer filed a lawsuit, naming Jodilynn and Carl as defendants, in York County Court, seeking legal and physical custody of the four children. The court made a temporary award of primary custody to Jodilynn while the case was pending, with partial custody (visitation) for Jennifer and Carl (for the two children who were his biological offspring).

Shortly after this, however, some trouble arose with one of the nephews, some unresolved delinquency charges that he had committed an "indecent assault" against one of the younger children, and he was sent to live with Jennifer, with Jodilynn providing money for his expenses. The Dauphin County Court directed that "at no point in time are the parties to exercise custody of [the nephew] and [the younger child] at the same time." Then, after a hearing last August where the court received expert testimony from a child psychologist, the court gave Jennifer primary custody of the one nephew who was living with her, and partial custody (visitation rights) with the other three children; Jodilynn got primary custody of the three children and partial custody (visitation) with the one nephew, and Carl was awarded partial custody (visitation) of one weekend a month with his two children. Jennifer appealed this ruling, claiming that according to the expert’s opinion, she should have primary custody of the children.

Meanwhile, back in April, 2006, while the custody case was pending in York County Court, Jodilynn filed a complaint in Dauphin County Court, seeking child support payments from Jennifer for the two younger children. The court awarded her payments of $983 per month, on the theory that Jennifer was a de facto parent of these two children who should be legally obligated to contribute to their support. Jennifer appealed this ruling, arguing that since Carl was now essentially a third legal parent of those two children, he should be required to pay part of the child support.

Although the York County judge had no trouble with the concept of three adults each having some sort of legal relationship to the children, Jodilynn and Carl as biological parents and Jennifer as a de facto parent with visitation rights, the Dauphin County judge balked at the idea, rejecting Jennifer’s request that Carl be added as an "indispensable party" to the support case, which would be necessary in order for the court to order him to make support payments. (A court can only order a remedy against a person or entity who has been made a "party" to a case.)

Both cases were appealed to the Superior Court. Judge Kelly found no fault with the custody and visitation rulings by the York County Court, but decided that the Dauphin County judge should have added Carl as a party to the case and determined a fair division of the child support payments to include him. Identifying the main question before the court, Judge Kelly wrote, "If fundamental fairness prevents [Jennifer], identified by law as a third party, from avoiding a support obligation arising from her status as a de facto parent, and she does not, in any event, attempt such an avoidance, does not the same principle operate similarly to estop [Carl], automatically recognized as the possessor of parental rights based on his biological parenthood, from disclaiming financial responsibility?"

"We think that it does," he asserted. "His obligation is, in fact, statutorily imposed as ‘parents are liable for the support of their children who are unemancipated and 18 years of age or younger,’" quoting the Pennsylvania child support statute. Judge Kelly pointed out that Carl had voluntarily provided financial support all along, and had borrowed money to provide a car for transporting the children. "While these contributions have been voluntary," Kelly observed, "they evidence a settled intention to demonstrate parental involvement far beyond the merely biological. Further, in addition to having been awarded partial custody, [Carl] was present at the birth of [one of the children]; has expressed an interest in relocating closer to the children’s home to facilitate both his court ordered monthly partial custody and further contact, which in fact, already occurs; and has encouraged the children to call him ‘Papa.’"

The superior court found this evidence to be "widely at variance with the support court’s characterization of [Carl]’s having ‘played a minimal role in raising and supporting’ the children. We find that under such circumstances, the principle which serves to confirm [Jennifer]’s obligation operates in the same manner as to [Carl]’s." Kelly found that cases relied on by the Dauphin County Court were distinguishable because the sperm donors had not assumed parental roles towards the children.

While noting that the legislature had failed to anticipate or address this kind of situation, the court quoted from a prior opinion in support of its proposed solution: "However, in the absence of legislative mandates, the courts must construct a fair, workable and responsible basis for the protection of children, aside from whatever rights the adults may have vis a vis each other."

Thus, the court affirmed the various full and partial custody awards to the three adults, and sent the case back to the Dauphin County Court for an appropriate calculation of child support payments from Jennifer and Carl for the three children for whom Jodilynn has primary physical custody.

Comments

[whatamess]

Outrageous! How many parents can a child possibly have who have a duty to support them? This is just another case of let's get as much money as possible from everyone we can, so that the state can get their cut from the federal government...outrageous.

[Art Leonard]

I find this comment unhelpful and in some respects indecipherable. The end result of the court's decision is that the child has three sources of parental support instead of two, which decreases the likelihood that the child will need financial assistance from the state or federal governments. How does the state stand to gain increasing federal money from this decision? It is really about financial responsibility of all those claiming a parental role in the child's life.

[c. hogue]

Despite the fact that the sperm donor acted as a
"step parent" and contributed money for the child, does that give the
court the right to obligate the sperm donor
to pay child support? What
about other step parents and
relatives that do the same
thing...they're not
charged with child support!

[Angela]

I find that this was a VERY helpful case. I am going through sort of the same issue right now, well not really I guess, but I am a surrogate for a couple and the judges will NOT remove my name from the birth certificate. I will research this case and hopefully it can lead me in some sort of direction as to what I need to do.

[Reeta]

A unanimous panel of the Pennsylvania Superior Court, an intermediate appellate court, ruled on April 30 in Jacob v. Shultz Jacob, 2007 Westlaw 1240885, 2007 PA Super 118, that a child may have three parents, in this case a former lesbian couple and the man who donated sperm so they could have some children. The unusual ruling is not based on Pennsylvania family law statutes, but instead on judge made doctrine of equitable estoppel,which has occasionally been used to in the past to enforce child support obligations against persons who are not legal parents. According to the opinion for the court by Senior Judge John T. Kelly, Jr., Jodilynn Jacob and Jennifer Schultz lived together in York County, Pennsylvania, for about six years beginning in 1996. During that time, they had a commitment ceremony in Pittsburgh, and formed a civil union in Vermont, Jennifer taking the last name Schultz Jacob. Jodilynn had two young nephews whom she had adopted, and she was the birth mother of two other children, conceived through donor insemination. The sperm donor was Carl Frampton, a long time friend of Jennifer.
-------------------------------
Reeta

pennsylvania drug rehab