K.J. Has Two Fathers (Who Are Both the Late Mother's Ex-Lovers)

From Taylor v. Smith, decided last month by a Pennsylvania appellate panel (Judge Correale Stevens, joined by Judges John Bender and Anne Lazarus) but just noted yesterday in the Westlaw Bulletin:

Victor Taylor ("Father") appeals from the order dated and entered March 1, 2023, awarding shared legal and physical custody of K.J. ("Child"), a male child born in April of 2020, to him and Kareem Smith, the nonbiological father who stood in loco parentis to Child….

Child was born to S.J. ("Mother"). At the time, Mother was in a relationship with Mr. Smith. Mr. Smith thought he was Child's father and raised Child with Mother until Mother's death in May of 2021. Thereafter, on July 12, 2021, it was confirmed that Father is Child's biological father. {We glean from the record that Father sought court approval to perform a paternity test. Mr. Smith does not dispute Father's paternity.}

Father and Smith were given joined custody, and the court affirmed; it began by quoting an earlier decision setting forth the rights of biological parents and others who had helped raise a child:

The 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." Section 5327 of the Custody Act pertains to cases "concerning primary physical custody" and provides that, "[i]n any action regarding the custody of the child between a parent of the child and a nonparent, there shall be a presumption that custody shall be awarded to the parent. The presumption in favor of the parent may be rebutted by clear and convincing evidence." …

[But] "[w]hile this Commonwealth places great importance on biological ties, it does not do so to the extent that the biological parent's right to custody will trump the best interests of the child. In all custody matters, our primary concern is, and must continue to be, the well-being of the most fragile human participant—that of the minor child." "Once it is established that someone who is not the biological parent is in loco parentis, that person does not need to establish that the biological parent is unfit, but instead must establish by clear and convincing evidence that it is in the best interests of the children to maintain that relationship or be with that person."

The appellate court went on to say:

[W]hile the trial court recognized the statutory presumption in favor of biological parents …, the trial court found clear and convincing evidence that Child's best interests dictated maintaining shared legal and physical custody …. ["][T]he [c]ourt finds by clear and convincing evidence that the need for stability and continuity in [ ] Child's life is sufficient to overcome the presumption …["]

[T]he record supports the trial court's conclusion that the factors weighed evenly between the parties. For example, at the time of the subject proceeding, Father and Mr. Smith had been exercising 50/50 shared custody for almost one year. Father and Mr. Smith both reside in Williamsport in the same school district. Father testified things are going well, and he and Mr. Smith are working together "perfectly" and as "civilized parents." Mr. Smith agreed. Further, Child is happy and doing well. He has half-siblings and extended family, with whom he is close, associated with each home…. [T]he trial court did not abuse its discretion in determining that an award of shared legal and physical custody was in Child's best interest….

Melody L. Protasio represented Smith.