News

The Pennsylvania Superior Court has finally given gay parents a long overdue legal victory. In a single stroke, the Superior Court swept away decades of discrimination against gay parents and gave them new hope for getting custody of their children. The Court held that the lesbian mother and heterosexual father of a five year old Dauphin County girl should share custody of their adopted daughter. A lower court in Dauphin County had given the father primary physical custody. The Superior Court ruling reversed that decision, but the ruling has much broader implications for gay parents seeking custody of the children. Simply put, the Superior Court ruling will make it easier for gay parents in Montgomery County, Delaware County, Bucks County and throughout the Commonwealth to get custody of their children.

In its opinion, the Pennsylvania Superior Court rejected the Dauphin County court’s reliance on a 25 year old case that required parents in a gay relationship “to prove that there will be no adverse effect on the child if exposed to the relationship.” That 1985 case was based on the judge’s belief that the mother’s lesbian relationship “show[ed] her moral deficiency.” Remarkably, until now, Pennsylvania courts (including the Dauphin County court in 2008) continued to rely on that 1985 decision to require gay parents to overcome the presumption that they were less fit than heterosexual parents. But the Pennsylvania Superior Court has now overruled both “the holding and the reasoning” of that old case. In doing so, the Superior Court rejected “unsupported preconceptions and prejudices” and declared that they “have no place in child custody cases.”

While the Superior Court decision is evidence of a legal trend toward equality for gays and lesbians, there is still a long struggle ahead for Philadelphia gay rights. In its opinion, the Superior Court noted that, while the mother and father in this case are both law enforcement officers, the Dauphin County judge referred to the father as “Sergeant” and the mother by her first name!

If you’d like speak with a Montgomery County lawyer to know how this decision could affect your custody situation and/or for other child custody questions, email me or call me, Dave Frankel, a gay rights attorney, at 1-877-704-4529. I’d be happy to speak with you.