Pennsylvania Superior Court Overrules Quarter-Century Homophobic Precedent

In 1991, I published an article in the Journal of Gay & Lesbian Psychotherapy titled "Homophobia, Heterosexism and Judicial Decision Making," in which I focused on a few then-relatively-recent published court opinions that I contended were examples of judicial homophobia.  One of the cases I discussed in that article was Constant A. v. Paul C.A., 496 A.2d 1 (Pa. Super. 1985), in which a panel of the Pennsylvania Superior Court, an intermediate appellate court, had adopted a presumption against awarding custody to gay parents, based mainly on unproven assumptions about the disabilities of gay people as parents.  I am delighted to report that on January 21, 2010, the Pennsylvania Superior Court issued an en banc decision in M.A.T. v. G.S.T., 2010 PA Super. 8, 2010 Westlaw 204148, in which Constant A. was officially overruled as a precedent.  It took a quarter of a century, but finally we are rid of that homophobic presumption against gay parental custody in Pennsylvania. 

This case involved married police officers who adopted a child in 2004.  Shortly after the adoption, M.A.T., the Mother, began an affair with another woman, and she informed her husband, G.S.T., about this relationship in February 2006.  In October 2006, Mother filed for divorce and sought shared custody of the child, a daughter.  Father responded seeking prime physical custody.  The trial court initially allowed for an interim shared custody arrangement with the child going back and forth between the parental homes for a few days at a time, but ultimately awarded prime physical custody to the Father.  The trial judge expressed a personal preference against shared custody arrangements for school-age children, totally rejected the custody evaluator's recommendation for shared custody based on that personal preference, and, of course, cited the Constant case presumption, finding that Mother had not presented any evidence specifically to rebut the presumption against custody for a gay parent.  Mother appealed.

After noting that since Constant various panels of the Superior Court had taken conflicting approaches to the issue of gay parent custody and visitation claims, and that the Pennsylvania Supreme Court has specifically disapproved the use of presumptions in child custody cases, Judge Christine Donohue wrote for the en banc panel that it was overruling both the holding and the reasoning of Constant and those panel decisions that had followed it.  Donohue wrote that the court would "conclude that a homosexual parent bears no special evidentiary presumption in a child custody case," finding that Constant's adoption of the presumption "is fundamentally contrary to our Supreme Court's admonition that presumptions should not be relied upon when deciding child custody cases between the parents."  

But the Constant ruling was not rejected solely because it established a presumption.  Judge Donohue also rejected the ideas upon which that presumption had been based, writing, "Moreover, Constant's evidentiary presumption is based upon unsupported preconceptions and prejudices -- including that the sexual orientation of a parent will have an adverse effect on the child, and that the traditional heterosexual household is superior to that of the household of a parent involved in a same sex relationship.  Such preconceptions and prejudices have no proper place in child custody cases, where the decision should be based exclusively upon a determination of the best interests of the child given the evidence presented to the trial court."

Since the trial court in this case "admitted that Mother's lesbian extramarital affair played a role in the decision to award primary custody to Father" and cited and relied on a decision that the en banc court was now overruling, "the trial court's reliance upon Constant was error and its order dated August 11, 2008, must be reversed."  The court found it was also error for the trial court totally to discount the evaluator's expert testimony and to rely instead on the trial judge's own explicit biases against shared custody, with no evidentiary basis in the record.  Although a trial court is not obligated to accept an expert's recommendation, wrote Donohue, "It is an abuse of discretion, however, for a trial court to dismiss as unpersuasive, and to totally discount, uncontradicted expert testimony."  In this case, there was no testimony in the record contradicting the evaluator.

The court found there was no need to send the case back to the trial court for a new hearing, since the uncontradicted evidence in the record would support the shared custody arrangement sought by Mother.  Consequently, the court sent the case back to the trial court for entry of a custody order consistent with the en banc court's conclusion in favor of Mother's custody demand.  There was a partial dissent by two judges who, while agreeing that the trial court's order should be set aside, thought it was not a good idea to send the case back to the trial court 17 months later without an opportunity to consider whether the current factual situation might support a different conclusion concerning the best interest of the child, who was now older and attending school.  The dissenters made clear that they agreed with the majority to overrule Constant and to end any sort of presumption against custody for gay parents.

About time!