First, the confession. I spent the other day driving around and listening to public radio. Whether by reason of re-broadcast of prior shows or perhaps something new, the feed I heard involved two topics we have blogged about. The first was what to do if your stocking was stuffed with a gift of genetic testing to discover your ancestry. The second related to “nesting” or “birdnesting as a custody arrangement. Ironically, in the afternoon, I heard parts of an interview with singer and songwriter Allison Russell that spoke directly to the genetic testing issue.
We wrote about nesting on October 8. It was in response to this program on Studio 1A.
As I listened to this a second time, one of the concerns that struck me was the message being sent to the child. I grew up in the 1960s, a time when pregnancy and child-rearing were viewed as a stage of life rather than a conscious decision. Birth control and the legal right to terminate a pregnancy changed that landscape and children of the 21st century seem to have taken on a kind of exalted status. They become the centerpiece of the marriage and that often causes a fair amount of marital discord. When couples separate but decide to leave the child in the marital home while they swoop in and out (my avian metaphor), the kid is left with the impression that he or she is the central occupant, and the parents are supporting actors. This problem is compounded when parents feel entitled to share with their children “just what mommy/daddy did” to contribute to the demise of the marriage. This is often executed under the flag called: “The child needs to know the truth.” The show featured a couple who has been nesting for nine or more years. Even they were surprised that the arrangement had worked so long. The challenge I see is that when the child is a full time occupant of the 2,500 square foot house while his/her parents shift in and out, it’s not sending the right message to the child. And when one or more parent starts to whine about how the child is effectively controlling the house, the parents inevitably look small even though they are the ones who sacrifice. For the reasons we wrote about nesting may be a wise exit strategy but it should not become a way of life for parents who are supposed to lead by example.
The genetic testing story was something we covered on November 2, 2021 noting that an otherwise harmless genetic test can send families into hyperspace when it is revealed that the guy who drove you to all your baseball games and walked you down the aisle is not really your father. Many children, including those who learned this information well into adulthood, found the experience completely unsettling. Terry Gross’ Fresh Air interview with songwriter Allison Russell underscores the point. Allison reports that she grew up with a father whom she regarded as extremely abusive. At age 30 she discovered he wasn’t her father. Ponder the twists that inform those relationships. She describes it in a very healthy way but clearly this was not a healthy way to grow up. The innocent gift of securing your historical ancestry can upend your entire family. One child reported that her mother’s chronic illness requiring weekly office visits for treatment included “treatments” which produced her; a shock that had to rattle her real father, a man who thought he was her father and revealed her mother’s infidelity. This also means that you may be only a half-sibling of the brother you shared a bedroom with and that you are half-siblings with many other children you don’t know. That can rock almost anyone’s world and should not come as a mail-order surprise.
Last but not least, we should report that Glover v. Junior was affirmed by a full bench of the Superior Court on December 11. Aaron Weems and I reported on this in late March and April when the panel decision was issued and Aaron has a podcast following up on his blog post.
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The full court affirmed the panel decision last Spring but with it came two dissents expressing disappointment that neither the Supreme Court nor the Superior Court took on the issue of parentage by consent in contrast to the actual agreement. The facts in Glover are clear that both individuals acted as if they had contracted to raise the child together. Judge Meghan King, joined by Judges Panella and Murray noted that the Courts are not addressing “intent” based parentage in contrast to “contract” based arrangements. This grew out of Justice David Wecht’s comments in C.G. v. J.H, joined by Justice Donohue said;
According to the majority, our precedent supports a conclusion parentage for standing purposes may be proven in only four ways: biology, adoption, a presumption attendant to marriage, or “legal parentage by contract — where a child is born with the assistance of a donor who relinquishes parental rights and/or a non-biologically related person assumes legal parentage[.]”
I would not interpret our case law so narrowly. Instead, I believe there is room in our precedent — particularly in the absence of any guidance from the legislature — to conclude an individual who lacks biological, adoptive, or marital ties may nevertheless establish standing as a parent to seek custody under 23 Pa.C.S. § 5324(1). See Sinnott v. Peck , ––– Vt. ––––, 180 A.3d 560, 573 (2017) (“[T]he Legislature’s inaction to date is not an impediment to our own obligation to resolve the specific cases before us by developing a consistent and coherent approach to defining parenthood within the construct that the Legislature has given us and our prior case law; in fact, it creates a more urgent need for us to act.”). Such is certainly the trend in other states. See id. at 569-72(detailing cases that “reinforce the modern trend” of analyzing non-biological, non-adoptive, and non-marital parenthood by “focusing on the parties’ agreement and intentions at the time they brought a child into their home”); NeJaime, 126 Yale L.J. at 2260 (explaining “the law increasingly … recognizes parents on not only biological but also social grounds” and offering comprehensive analysis of legal trends).
The majority in C.G. v. J.H held that there was not an agreed intent to raise a child together. Thus, the issue of intent based parentage was not directly in question. In the December 11 Superior Court concurrence Judges King, Panella and Murray essentially invite the Supreme Court to take this case and address the question of whether intent based parentage will be adopted in Pennsylvania. The Supreme Court does not have to take this case if it is appealed. In the meantime, the sound advice to anyone starting down the IVF road is to put matters in writing.
Glover v. Junior, 2023 Pa.Super. 261(2023)
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